Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

The patents-in-suit are related to pulse oximetry systems.  Plaintiff’s complaint alleges infringement and willful infringement and seeks to enjoin defendant from further production, use, or sale of infringing products.  Defendants have asserted counterclaims of infringement and antitrust claims.  After bifurcating and staying the antitrust claims, the court considers defendants’ motion to bifurcate and stay discovery on damages.  This is a large and complex case with multiple patents, claims, and counterclaims where a finding of non-infringement or patent invalidity in the liability phase would obviate the necessity for a damages trial and render any damage exclusive discovery a waste.  However, defendants have not demonstrated that the probability that its defense will prevail at trial is any higher than the probably that plaintiff’s claims will.  Additionally, certain aspects of plaintiff’s liability case and damages overlap such that education of the jury on both is important.  Finally, plaintiff’s proposal to try patent damages before the antitrust jury following an antitrust liability trial, and its trifurcation plan empanelling a third jury to determine antitrust and patent damages simultaneously, retain the same possibility that a jury may inadvertently blur the distinction between legitimate patent enforcement and attempts to establish or further an unlawful monopoly.