Cornell University, et al., v. Illumina, Inc., C.A. No. 10-433-LPS-MPT, June 25, 2013.

Thynge, M.J.  Report and recommendation: Plaintiffs’ motion to strike portions of reply brief containing inadmissible evidence relating to settlement negotiations is granted; plaintiffs’ motion to strike based on arguments and facts newly raised in the relpy brief is granted in part and denied in part.

Defendant’s motion  for summary judgment directed to a covenant not to sue regarding two of the plaintiffs is granted; plaintiff’s cross-motion that defendant Cornell is not bound by the covenant is granted; plaintiff’s cross-motion that Life Technologoes is not bound is denied. 

Defendant’s motion for summary judgment alleging lack of standing is denied.

Defendant’s motion for summary judgment re exemptions from the covenant not to sue is denied; plaintiffs’ cross motion regarding patents owned or licensed by Applera  is granted; plaintiffs’ cross motion regarding noninfringing use of patents is denied.

 With respect to the motion to strike, the court states that settlement agreements may not be prohibited by FRE 408 as long as the they do not disclose terms granted in settlement of litigation. This is so even if plaintiff opened the door and plaintiff’s references were inappropriates and neither parties’ evidence would be admissible. A press release defendant cited for the first time in its reply brief was not considered. As for summary judgment, the court finds that plaintiffs have not raised a genuine issue of material fact regarding products which were the subject of a settlement agreement with a third party Applera.