By Memorandum Opinion entered by The Honorable Richard G. Andrews in Novartis Pharmaceuticals Corp. et al. v. Mylan Pharmaceuticals Inc., Civil Action No. 17-389-RGA (D.Del. June 29, 2018), the Court rendered its Markman ruling construing three (3) terms in dispute in the asserted claims of U.S. Patent Nos. 8,778,962 (“the ‘962 patent”) and 8,617,598 (“the ‘598 patent”).

A copy of the Memorandum Opinion is attached.

By Memorandum Opinion entered by The Honorable Richard G. Andrews in TQ Delta, LLC v. ZyXel Communications, Inc. et al., Civil Action No. 13-02013-RGA (D.Del. June 12, 2018), the Court denied Defendants’ Motion for Expedited Consideration of a Preliminary Injunction seeking to enjoin Plaintiff from pursuing an action in the High Court of Justice of London, England against ZyXel UK and ZyXel Communications A/S (incorporated in Denmark) for infringement of two European patents. One of the two patents in suit in the UK action is the counterpart to the claims in the Family 5 patents asserted in the instant action. Id. at *2.

In denying Defendants’ motion, the Court explained that the Third Circuit has adopted the restrictive approach as a test for determining whether an anti-suit injunction should be entered to restrain the advancement of a foreign parallel proceeding. Id. at *3. Under the restrictive approach, anti-suit injunctions against foreign proceedings are rarely granted. Id. District courts may appropriately enjoin “foreign parallel proceedings only to protect jurisdiction or an important public policy.” Id. The Third Circuit’s jurisprudence instructs that, although comity is a consideration in federal and state litigation, comity should weigh even more heavily in the court’s analysis of anti-suit injunction in the international context. Id. Domestic and foreign parallel proceedings may ordinarily proceed simultaneously “at least until one has reached the stage where its ruling becomes res judicata.” Id.

Applying the restrictive approach to the circumstances in the instant action, the Court found that the UK action will not usurp this Court’s jurisdiction or threaten an important public policy. Id. at *4-8. Thus, the UK action should proceed parallel to the instant action, and an injunction is not warranted. Id.

A copy of the Memorandum Opinion is attached.

By Memorandum Opinion entered by The Honorable Richard G. Andrews in TQ Delta, LLC v. Zyxel Communications, Inc. et al., Civil Action No. 13-02013-RGA (D.Del. May 8, 2018) (consolidated), the Court rendered its Markman ruling construing thirteen (13) disputed terms in U.S. Patent Nos. 7,796,705 (“the ‘705 patent”), 8,335,956 (“the ‘956 patent”), 8,407,546 (“the ‘546 patent”), 8,468,411 (“the ‘411 patent”), 8,595,577 (“the ‘577 patent”), and 8,645,784 (“the ‘784 patent”).

A copy of the Memorandum Opinion is attached.

By Memorandum Opinion entered by The Honorable Richard G. Andrews in State of Delaware v. Purdue Pharma L.P. et al., Civil Action No. 18-383-RGA (D.Del. April 25, 2018), the Court granted Plaintiff State of Delaware’s Motion to Remand the action originally filed by Plaintiff in the Superior Court of Delaware against manufacturers, distributors, and pharmacy retailers of prescription opioids for their roles in Delaware’s opioid crisis. In granting the Motion to Remand the action back to Delaware Superior Court, the District Court found that it lacked federal subject matter jurisdiction over Plaintiff’s claims. Id. at *2.

Specifically, in the action, Plaintiff alleged that Defendants created and fueled the opioid crisis in Delaware by violating the Delaware Controlled Substances Act and the Federal Controlled Substances Act, among other things. Id. However, in its Complaint, Plaintiff alleged only state law claims of consumer fraud, nuisance, negligence, unjust enrichment, and civil conspiracy against McKesson Corporation. Id. Nonetheless, McKesson filed a notice removing the action to the District of Delaware asserting that there was federal question jurisdiction pursuant to the Federal Controlled Substances Act. Id. at *2-3. Thereafter, Plaintiff filed its Motion to Remand the action back to Delaware Superior Court. Id. at *3.

Because there was no dispute that Plaintiff’s claims arose under state law, McKesson had to show that a federal issue is (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution without disrupting the federal-state balance approved by Congress. Id. at *4. Ultimately, the Court found that “the federal issues in [the] case are not necessarily raised, substantial, and possible to entertain without disrupting the congressionally – approved balance between state and federal courts.” Id. at *11. Thus, the Court found that Plaintiff’s state law claims do not “arise under the Constitution, laws or treaties of the United States” and did not confer federal question jurisdiction pursuant to 28 U.S.C. § 1331. Id. at *11.

A copy of the Memorandum Opinion is attached.

By Memorandum Opinion entered by The Honorable Richard G. Andrews in IPA Technologies, Inc. v. Amazon.com, Inc. et al., Civil Action No. 16-1266-RGA (D.Del. March 31, 2018) (consolidated), the Court granted Defendants’ motions to dismiss as to claim 1 of U.S. Patent No. 6,742,021 (“the ‘021 patent”), claim 1 of U.S. Patent No. 6,523,061 (“the ‘061 patent”), and claim 1 of U.S. Patent No. 6,757,718 (“the ‘718 patent”) after finding that those claims are each drawn to an abstract idea and that none of them provide an inventive concept. In reaching its findings, the Court noted, among other things, that the subject claims are “aspirational in nature and devoid of any implementation details or technical description” that would permit the Court to conclude that any of the subject claims as a whole are directed to something other than the abstract idea of retrieving electronic data in response to a spoken request, and transmitting the retrieved data to a user. Id. at *18.

A copy of the Memorandum Opinion is attached.

By Memorandum Opinion entered by The Honorable Richard G. Andrews in Acceleration Bay LLC v. Activision Blizzard, Inc., Civil Action No. 16-453-RGA (D.Del. January 17, 2018) (consolidated), the Court rendered its Markman ruling construing eight (8) disputed terms in U.S. Patent Nos. 6,701,344 (“the ‘344 patent”), 6,714,966 (“the ‘966 patent”), 6,829,634 (“the ‘634 patent”), 6,910,069 (“the ‘069 patent”), 6,732,147 (“the ‘147 patent”), and 6,920,497 (“the ‘497 patent”).

A copy of the Memorandum Opinion is attached.

By Memorandum Opinion entered by The Honorable Richard G. Andrews in Sanofi-Aventis U.S. LLC et al. v. Merck Sharp & Dohme Corp., Civil Action No. 16-812-RGA (D.Del. January 12, 2018), the Court rendered its Markman ruling construing nine (9) disputed terms in U.S. Patent Nos. 8,603,044 (“the ‘044 patent”), 8,679,069 (“the ‘069 patent”), 8,992,486 (“the ‘486 patent”), 9,526,844 (“the ‘844 patent”), 9,533,105 (“the ‘105 patent”), 9,457,152 (“the ‘152 patent”), 9,592,348 (“the ‘348 patent”), 7,476,652 (“the ‘652 patent”), 7,713,930 (“the ‘930 patent”), and 9,604,008 (“the ‘008 patent”) . The patents-in-suit generally relate to a diabetes pharmaceutical, or to pen-type injectors used to administer the pharmaceutical. Id. at *1.

A copy of the Memorandum Opinion is attached.

Following a three-day bench trial in the matter on June 5-7, 2017 and after having considered the entire record in the case and the applicable law, the Court, through Trial Opinion, entered by The Honorable Richard G. Andrews in Orexigen Therapeutics, Inc. v. Actavis Laboratories FL, Inc., Civil Action No. 15-451-RGA (D.Del. October 13, 2017), found that (1) Defendant failed to prove by clear and convincing evidence that claims 26 and 31 U.S. Patent No. 7,462,626 (“the ‘626 patent”), claim 1 of U.S. Patent No. 7,375,111 (“the ‘111 patent”), and claim 11 of U.S. Patent No. 8,916,195 (“the ‘195 patent”) are invalid; and (2) Plaintiff proved by a preponderance of the evidence that Defendant’s ANDA product directly infringes claim 1 of the ‘111 patent and indirectly infringes claims 26 and 31 of the ‘626 patent and claim 11 of the ‘195 patent.

A copy of the Trial Opinion is attached.

 

By Order entered by The Honorable Richard G. Andrews in Blackbird Tech LLC d/b/a Blackbird Technologies v. Lenovo (United States) Inc., Civil Action No. 16-140-RGA (D.Del. June 19, 2017), the Court rendered its Markman ruling construing the remaining term in dispute in U.S. Patent No. 7,129,931 (“the ‘931 patent”) consistent with plaintiff’s proposed construction of the term. The ‘931 patent relates to a laptop computer with a dual-axis hinge for the monitor and a front-facing port. The remaining dispute in the claim construction was whether the term “port” in claim 1 includes a PC card slot or whether PC card slots were disclaimed during the prosecution of the patent. Id. at *6. After review of the prosecution history, the Court agreed with Plaintiff that PC card slots were clearly disclaimed. Id. at *7-10. Thus, the Court construed the term “port” as an “interface not including a PC card slot.” Id. at *10.

A copy of the Memorandum Opinion is attached.

By Memorandum Opinion entered by The Honorable Richard G. Andrews in Insight Equity d/b/a Vision-Ease Lens Worldwide v. Transitions Optical, Inc., Civil Action No. 10-635-RGA (D.Del. May 9, 2017), the Court granted in part and denied in part Plaintiff’s motion to exclude the expert testimony of Defendant’s expert which defined the relevant market for purposes of the antitrust claims.

Defendant’s expert defined the relevant market in the case to include both photochromic and clear lenses and used two econometric tests – cross-price elasticity of demand and co-price movement – to support her market definition. Id. at * 9. Plaintiff’s motion did not challenge the methodological soundness of cross-price elasticity and co-price movement; rather, it challenged the appropriateness of those tests under the facts and circumstances of the case. Id. at *12. In other words, Plaintiff’s motion challenged the “fit” of the expert’s use of cross-price elasticity of demand and co-price movement given the facts and circumstances of this case. Id.

Ultimately, with the exception of not allowing Defendant’s expert to rely on the co-price movement that she attributed to common components of clear and photochromic lenses, the Court rejected Plaintiff’s challenge and permitted Defendant’s expert to testify on co-price movement and cross-price elasticity of demand in giving her expert opinion on the relevant market for purposes of the antitrust claims. Id. at *14-16.

A copy of the Memorandum Opinion is attached.

The general takeaway is that an expert’s testimony must comply with the three requirements set forth in Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579, 589 (1993): (1) qualification; (2) reliability, and (3) fit. The Court has a gatekeeping role in assessing whether the proffered testimony complies with the Daubert requirements. However, Courts tend to interpret the qualification, reliability and fit requirements of Daubert liberally when evaluating whether to exclude proffered expert testimony.