This is part of a series of articles discussing recent orders of interest issued in IP cases by the United States District Courts in the Southeast
In
Along with a host of other claim construction arguments, Defendant NeoGenomics contended that the '454 patent was invalid for indefiniteness because the patent failed to provide (1) a frame of reference to differentiate between a “clonal” and “subclonal” mutation or (2) any guidance on the correct method of calculating a limit of detection for the claimed ranges of DNA concentration. The court rejected both arguments.
As to the terms “clonal” and “subclonal,” the court found that both parties' experts had the same understanding of their meanings and that the agreed-upon meanings allowed for differentiation between the two terms: a mutation detected in all sampled areas of a tumor is clonal while a mutation detected in some but not all sampled areas is subclonal. Finding the terms not ambiguous, the court concluded that
As to whether the claimed ranges of concentration required a limit of detection, the court found that the claims do not recite any limit of detection. The court further found that there was no persuasive evidence to indicate that the method of calculating the limit of detection mattered. Instead, any method capable of detecting the mutation below or within the claimed ranges would do. Accordingly, the court held that the claim terms were not indefinite.
In
Sanho and Kaijet are competitors in the MacBook dongle market. Since 2005, Sanho has used the “HyperDrive” name on a variety of electronic accessories, including its MacBook hubs, which it released in late 2016 or early 2017. Kaijet sells a line of competing “UltraDrive” MacBook hubs, which it released sometime in late 2017. Sanho subsequently filed suit, asserting several intellectual property claims against Kaijet, including a false advertising claim. Kaijet responded with false advertising and false marking counterclaims against Sanho.
Sanho's False Advertising Claim
Sanho asserted that Kaijet falsely advertised one of the accused hubs as an “8-in-1” product when the hub only had seven ports, as shown below.
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Kaijet moved for summary judgment on the grounds that “8-in-1” was not literally false because the accused hub had eight functions even if it had only seven ports. The court agreed, finding that the phrase was too ambiguous for it to be literally false, and that it was, at worst, misleading. However, for Sanho to prevail on a “literally true but misleading” theory, it had to present evidence of customer confusion, and it had failed to do so. Accordingly, the court granted summary judgment to Kaijet on Sanho's false advertising claim.
Kaijet's False Advertising Claim
Kaijet's false advertising counterclaim was based on Sanho allegedly engaging in a “fake review campaign” to manufacture positive product reviews on e-commerce retail sites. Sanho moved for summary judgment, arguing that the alleged false or misleading statement was immaterial. The court agreed, finding that Kaijet only presented evidence showing generally that a significant portion of consumers read product reviews, not that the alleged fake reviews were material to consumers' purchasing decisions. The court, therefore, granted summary judgment to Sanho on Kaijet's false advertising counterclaim.
Kaijet's False Marking Claim
Lastly, Kaijet asserted that Sanho falsely marked one of its products as covered by three patents despite the product being outside the scope of those patents. Sanho moved for summary judgment on the basis that, even if the product was falsely marked, there was no competitive injury. The court agreed, finding that the social media posts in which Sanho mocked the accused products as copying HyperDrive were insufficient to reasonably infer that any competitive injury was caused by the false patent marking. Accordingly, the court granted summary judgment to Sanho on Kaijet's false marking counterclaims.
In
Because the defendants are all overseas, Dongguan moved for alternate service of process under Rule 4(h)(2) and 4(f)(3) of the Federal Rules of Civil Procedure. Rule 4(h)(2) describes the various ways in which a plaintiff may serve foreign entities, and Rule 4(f)(3) explains that service may be accomplished by means not prohibited by international agreement. Rule 4(f)(3) is available without first attempting service by other means if service upon a foreign corporation is cumbersome, such as where the same retailer allegedly used multiple different names and storefronts to conceal its identity.
In
Tri-X had filed a state action against Defendant
In federal court, Tri-X moved to remand the action back to the state court, arguing that
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