Lack of willfulness motion is granted; issues of fact remain as to other motions
Cordance Corporation v. Amazon.Com, Inc. and Amazon Web Services, LLC, Civil Action No. 06c-491-MPT, July 27, 2009.
Thynge, M.J. Defendants’ motion for summary judgment is denied as to non-infringement and is granted as to no willful infringement; defendants’ motion for summary judgment regarding lack of written description is denied; plaintiff’s motion to strike materials produced after the close of discovery and inadmissible hearsay is granted in part, denied in part, and moot in part; defendants’ motion for summary judgment of invalidity is denied; and plaintiff’s motion for leave to file sur-reply regarding defendants’ invalidity motion is moot.
Before the Court are three defense motions for summary judgment. Also, plaintiff seeks to strike certain materials relied upon by defendant as well as permission to file a sur-reply to plaintiff’s motion for summary judgment of invalidity. The Court finds that plaintiff has not presented clear and convincing evidence that defendants acted despite an objectively high likelihood that its actions constituted infringement of the patents-in-suit. In addition, defendants moved for summary judgment on invalidity or non-infringement which demonstrates a good faith belief in its defense. Summary judgment of no willful infringement is granted. As for non-infringement the evidence presented creates a question of fact and defendants’ motion is denied.
Defendants next argue invalidity due inadequate description as pursuant to 35 U.S.C. § 1221(a). Defendants have not shown by clear and convincing evidence that the written description requirement has not been satisfied. Competing expert opinions create a question of fact precluding summary judgment. The motion to strike materials and witnesses identified after discovery is moot based on ruling made at the pretrial conference. Plaintiff also moves to strike two instances of inadmissible hearsay. First, defendants seek to use witness testimony from a prior, unrelated litigation. The Court strikes that testimony because there is no substantially similar interest, nor is there a sufficient community of interest. The second statement involves certain faxes attached to a declaration which were alleged to be incomplete and were authored by the declarant. The document is not hearsay since it is supported by the author of it through a declaration, and the declarant has confirmed that the document is complete and accurate. Therefore, the motion to strike is denied. Finally, Defendants contend that two prior art references invalidate one of the patents-in-suit. Competing expert opinions preclude summary judgment.
