Delaware Intellectual Property Litigation : DE Intellectual Property Lawyer & Attorney for Patents & Antitrust Litigation in Wilmington, Dover & Newark

By Memorandum Opinion entered by Chief Judge Gregory M. Sleet in Devicor Medical Products, Inc. v. Biopsy Sciences, LLC, Civil Action No. 10-1060-GMS (D.Del., April 15, 2013), the Court denied the amended motion to transfer venue of Defendant Biopsy Sciences, LLC. After analyzing whether the action could have been brought originally in the Middle District of Florida and the Jumara factors, the Court was unable to find that Biopsy had met its burden of showing that the balance of factors tipped strongly in favor of transfer. Id. at 11. Thus, the motion to transfer was denied.

A copy of the Memorandum Opinion is attached.
 

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By Report and Recommendation entered in Fuisz Pharma LLC v. Theranos, Inc., Civil Action No. 11-1061-SLR-CJB (D.Del., May 18, 2012), the Honorable Christopher J. Burke recommends that the Court grant the motion of defendant Theranos to dismiss, stay or transfer in part by transferring the case to the United States District Court for the Northern District of California. Specifically, Judge Burke recommends that the Court find that the first-filed rule applies, that the action filed by Theranos and its founder on October 26, 2011 against Fuisz Pharma and individual members of the Fuisz family in the United States District Court for the Northern District of California be considered the first-filed action, and that the patent infringement action filed by Fuisz Pharma on November 1, 2011 in the United States District Court for the District of Delaware be transferred to the Northern District of California. See id. at 8-35.

Of significant distinction in this matter appears to be the fact that the previously filed California action includes inventorship claims asserted under the Patent Act by Theranos alleging that the Fuisz defendants allegedly misappropriated Theranos’ and its founder’s confidential information and used that information to obtain the patent-in-suit in both actions, U.S. Patent No. 7,824,612 (the “’612 patent”), without crediting Theranos and its founder as the true inventors.  See id. at 2-3. 

A complete copy of the Report and Recommendation is attached.
 

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By Memorandum Opinion entered by the Honorable Richard G. Andrews in the consolidated cases of Robocast, Inc. v. Apple, Inc., Civil Action No. 11-235-RGA (D.Del., February 24, 2012) and Robocast, Inc. v. Microsoft Corporation, Civil Action No. 10-1055-RGA (D.Del., February 24, 2012), the Court denied the motions to transfer of defendants Apple and Microsoft seeking to transfer the patent infringement actions asserted against them by plaintiff Robocast to the Northern District of California. Id. at 2 and 11. In analyzing the transfer motions under the Jumara factors, the Court found that factors (1) and (4) (plaintiff’s forum preference as manifested in the original choice and the convenience of the parties as indicated by their relative physical and financial condition) supported plaintiff’s position that the transfer motions should be denied. Id. at 3-4. Significantly, the Court also considered and distinguished the Federal Circuit’s holding in In Re Link_A_Media Devices Corp., 662 F.3d 1221 (Fed. Cir. 2011) from this action finding that there was a greater connection to Delaware in this action. Id. at 10.  The Court also noted an important difference in the law of the Fifth Circuit and the Third Circuit in how to conduct a transfer analysis. Id. Ultimately, the Court determined that Apple and Microsoft did not show that the balance of convenience tipped strongly enough in their favor to warrant transfer. Id. at 10-11.

A complete copy of the Memorandum Opinion is attached.
 

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