By Memorandum Opinion entered by The Honorable Sue L. Robinson in Rosebud LMS, Inc. v. Adobe Systems Incorporated, Civil Action No. 14-194-SLR (D.Del., February 5, 2015), the Court granted the motion for summary judgment of no remedies of defendant Adobe Systems Incorporated (“Adobe”) after finding that the evidence submitted by plaintiff Rosebud did not show “actual notice” of the published patent application which resulted in the patent-in-suit, U.S. Patent No. 8,578,280 (“the ‘280 patent”).
Plaintiff Rosebud was seeking to recover provisional remedies under 35 U.S.C. § 154(d) based on the publication of the ‘280 patent application on December 29, 2011. See id. at 3-4. The parties did not dispute that the accused feature of Adobe’s product was discontinued and could not have been used after January 2013 and the ‘280 patent did not issue until November 5, 2013. Id. Accordingly, in order to recover the extraordinary remedy of pre-issuance damages provided for in 35 U.S.C. § 154(d), plaintiff had to show, among other things, that Adobe had “actual notice” of the published patent application as opposed to constructive notice of the published patent application. Id. at 3-7.
A copy of the Memorandum Opinion is attached.