Exelis Inc., v. Cellco Partnership (d/b/a Verizon Wireless), et al., C. A. No. 09-190-LPS, November 6, 2012.

Stark, J.  Motions for summary judgment are granted in part and denied in part. Daubert motions are denied.

A hearing on summary judgment and to address the exclusion of expert testimony was held September 28, 2012.  Plaintiff’s motion for summary judgment of no violation of 35 U.S.C. § 305 was denied without prejudice.  A proper analysis requires further claim construction and comparison between claims.  The parties may renew their motions in post-trial briefing.  However, summary judgment was granted, holding that the reexamination was not filed for an improper purpose.  Plaintiff’s motion for summary judgment of no invalidity under 35 U.S.C. § 112 was denied.  Genuine issues of material fact exist, as evidenced by the conflicting expert testimony.  Plaintiff’s motion for summary judgment against defendants’ affirmative defenses was granted in part and denied in part without prejudice.  Defendant did not oppose the motion as to certain defenses.  The motion was granted with respect to laches, as defendant failed to adduce sufficient evidence to prevail on the defense.  Plaintiff’s Daubert motion to preclude testimony of defendants’ proposed commercial success expert was denied. Plaintiff’s Daubert motion to preclude the testimony of defendants’ proposed technical expert was denied.  The challenges present issues going to weight and creditability to be determined by the fact finder.  Defendants’ motion for partial summary judgment for plaintiff’s violation of 35 U.S.C. § 305 was denied without prejudice for the reasons previously expressed. Defendants’ motion for partial summary judgment of invalidity was denied, as genuine issues of material fact exist.  Defendants’ motion for partial summary judgment of non-infringement was granted in part and denied in part in view of the parties’ agreement following claim construction.  Defendants’ Daubert motion to exclude the testimony of plaintiff’s commercial success expert was denied.  The Court found nothing improper in defendants’ expert’s approach to non-infringement and invalidity.  His testimony will be limited to that which has been previously disclosed.