Apple v. Samsung Preliminary Injunction Documents Denied Filing Under Seal Due to “Exceptionally Strong Public Interest”

The court denied without prejudice the parties' applications to file documents related to a motion for preliminary injunction under seal where there was an exceptionally strong public interest. "As evidenced by the plethora of media and general public scrutiny of the preliminary injunction proceedings, the public has a significant interest in these court filings, and therefore the strong presumption of public access applies. . . . [T]he exceptionally strong public interest in the preliminary injunction proceedings in this case merits imposition of the heightened 'compelling reasons' standard that governs the sealing of documents attached to dispositive motions or submitted in trial. . . . While much of the information that the parties sought to file under seal in connection with [plaintiff's] motion for preliminary injunction and [defendant's] motion to stay [pending appeal] may be sealable under the more pliant 'good cause' standard, hardly any of it, save for the exception of some limited third-party source code, satisfies the more stringent 'compelling reasons' standard. Moreover, much of the information may become public in the [related] trial."

Apple Inc. v. Samsung Electronics Co., Ltd., et. al., 5-12-cv-00630 (CAND July 18, 2012, Order) (Koh, J.).

“Highly Modulated Surface” Renders Claim Indefinite

The court granted defendants' motion for summary judgment of invalidity for indefiniteness of plaintiff's optical diffuser patent following claim construction. "The [patent-in-suit] fails to provide a standard for measuring the difference between a mere modulated surface and a highly modulated surface. In fact, the patent provides conflicting descriptions of the kinds of bumps that comprise a highly modulated surface. . . . As such, the patent fails to provide a person of ordinary skill in the art an objective anchor against which a potentially infringing product may be compared to determine whether the product meets the highly modulated limitation of Claim 1. . . . While [plaintiff] identifies an alleged purpose of a 'highly' modulated surface as being one of hiding structural features of the light source, the specification instead describes that feature only as a potential use of the surface as a component in an LCD display. . . . A potential use is not a purpose. Accordingly, [plaintiff's] attempt to divine objective guidance from the specification via expert testimony does not save the claims from a finding of indefiniteness."

Advanced Display Technologies of Texas, LLC v. AU Optronics Corporation, et. al., 6-11-cv-00011 (TXED July 12, 2012, Order) (Davis, J.).

Hypothetical Negotiation Resulting in “Financially Catastrophic Agreement” Excluded From Evidence

The court granted defendant's motion to exclude the testimony of plaintiff's damages expert as to a reasonable royalty based on the expert's application of an unreasonable hypothetical license negotiation. "[T]he Court cannot assume. . . that [defendant], in a hypothetical negotiation with [plaintiff], would have taken a risk on the infringement question and agreed to a huge, profit-eliminating (and even revenue eliminating) royalty obligation for itself. As a matter of law, no such risk can be taken in a hypothetical negotiation in which infringement is deemed known. With knowledge of validity and infringement, such a financially catastrophic agreement would have been totally unreasonable. . . . [A]ny unreasonable negotiating approach must be rejected, since the ultimate goal is to arrive at what the statute terms a 'reasonable royalty.' [Plaintiff's expert's] methodology inherently arrives at an unreasonable result, and one to which no reasonable negotiator for [defendant] could possibly have agreed."

WesternGeco LLC v. ION Geophysical Corporation, 4-09-cv-01827 (TXSD July 16, 2012, Order) (Ellison, J.).

Removal of App from Apple iTunes Store Did Not Constitute Irreparable Harm Sufficient for Preliminary Injunction

The court denied defendants' request for a preliminary injunction that would require plaintiffs to "rescind their demand that Apple withdraw [defendant's software application]" from the Apple iTunes App Store. In response to plaintiff's accusations that defendant's App infringed plaintiff's patent, and in the absence of a resolution of that dispute, Apple had removed defendant's App from the App Store. "[Defendant] contends that the total loss and destruction of a business constitutes irreparable harm. However, [defendant] cites to no controlling authority that so holds. Instead, numerous controlling authorities hold that where the injury suffered is a loss of money, irreparable harm cannot be demonstrated. Moreover, the only evidence [defendant] relies upon to factually establish irreparable harm is the declaration [of an employee], in which she states that '[i]f the App is not immediately restored to the iTunes App store, [defendant's] business, which is solely related to selling, upgrading and supporting the App, will be irreparably harmed. [Defendant's] reputation and goodwill among the relevant community will be irreparably destroyed; [defendant] will lose substantial customers and potential customers; and the value of [defendant's] App will be irretrievably lost.' These statements are conclusory and unsupported. . . . [Moreover] [defendant] cannot obtain preliminary injunctive relief because any order entered by this Court would be futile. The only remedy that would provide [defendant] with the outcome it desires and halt the irreparable harm it is allegedly suffering is the reinstatement of the App on Apple's iTunes App Store. This Court does not have the power to afford [defendants] that remedy."

Semantic Compaction Systems, Inc., et. al. v. Speak For Yourself LLC, et. al., 2-12-cv-00248 (PAWD July 14, 2012, Order) (Lancaster, J.).

Infringement Contentions Must “Address Each Product Separately” – Grouping by Functionality is Insufficient

The court granted defendants' motion to strike plaintiff's preliminary infringement contentions. "Plaintiff argues that it has sufficiently identified the accused instrumentalities because it has provided a description and there is no requirement that the identification must be by name and model number. Plaintiff has identified the accused functionality and identified exemplars of the products, and argues that this is sufficient . . . However, Plaintiff must address each product separately, and identifying products by functionality is not sufficient. . . . Plaintiff’s general list of products by category or functionality is insufficient, and Plaintiff must provide a list of accused products. . . . Although representative claim charts may be used in the appropriate case, Plaintiff has the burden of establishing that the products in the claim charts are representative of all of the accused products. Here, the products appear to differ from each other or at least fall into two or more different categories."

Vigilos LLC v. Sling Media Inc., et. al., 4-11-cv-04117 (CAND July 12, 2012, Order) (Laporte, M.J.).

Evidence of Defendant’s Intent to Discontinue Sales of Accused Product Excluded as Irrelevant to Reasonable Royalty Analysis

The court reconsidered its ruling made before opening statements and found that defendants were not permitted to present evidence that they no longer planned to commercialize the accused soybean seeds. "The issue was whether Defendants’ current lack of intent to commercialize [the accused seeds] is relevant to [plaintiff's] request for infringement damages. . . . The Federal Circuit has clearly stated that the applicable time frame for the hypothetical negotiation is the time of infringement. Therefore, Defendants’ present intentions concerning commercialization of [their] soybeans are irrelevant and inadmissible under Federal Rule of Evidence 402. Moreover, the Court finds that any remote probative value of this evidence is greatly outweighed by the danger of confusing the jury. . . . The Court, however, will allow Defendants to present evidence that to date, no sale of [that] seed has occurred."

Monsanto Company, et. al. v. E.I. Dupont De Nemours and Company, et. al., 4-09-cv-00686 (MOED July 11, 2012, Order) (Webber, J.).

“Revealed Preference” Theory of Lost Profits Not Inherently Unreliable

The court denied defendant's motion in limine to exclude the testimony of plaintiff's damages expert as to the "revealed preference" theory of lost profits. "[Defendant] moved to exclude [the testimony of plaintiff's damages expert] on the ground that the 'revealed preference' theory is unreliable when calculating lost profits in this case. [Defendant] claims [plaintiff's expert] has conducted no market surveys to support his view that customers who use arm-mounted scanners do not consider non-arm-mounted scanners as a close substitute. . . . While the record is not well-developed, the 'revealed preference' theory appears to be an economic principle cited in the literature. [Defendant] has not demonstrated that revealed preference is an unreliable methodology in the patent context that should be excluded under Fed. R. Evid. 702."

Metris USA, Inc., et. al. v. Faro Technologies Inc., 1-08-cv-11187 (MAD July 10, 2012, Order) (Saris, J.).