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

Daewoo filed an amended answer alleging counterclaims for relief under the Sherman Act, a D.C. antitrust act, consumer protection statutes and common law in addition to patent defenses.  A plaintiff may be liable under antitrust law if the accused infringer can prove Walker Process fraud or sham litigation.  The court finds that Daewoo has pled sufficient facts to satisfy 9(b) by identifying the date place or time of the fraud and other information that injects precision and some measure of substantiation into the fraud allegations.  Daewoo alleged LG misrepresented a material fact with intent to deceive when it failed to disclose 4 prior art references identified by the USPTO and 8 identified by the JPO and that the USPTO relied on the omission in issuing 4 patents.  The prior art was identified and the time and place of the fraud was the time of the patent applications.  The “other information” was the identification of the party responsible for the fraud as “one or more individuals associated with LGE, including its counsel, who owed a duty of candor to the USPTO.  Courts generally will not define a “relevant market” in a Walker Patent claim on a motion to dismiss.  Here, the relevant market is sufficiently pled as “frontload washing machines in the United States.”  The motion to dismiss these counterclaims is therefore denied.

The technology covers multi-mode interference devices that may be used to split, combine, or route optical signals.  Plaintiff is a U.K company with employees, including the inventors, located in the U.K.  Defendant is a Delaware corporation with its principal place of business in California.  While Plaintiff’s choice of forum is entitled to substantial deference, the court notes Delaware is not its “home” forum.  Plaintiff will need to travel in either forum, but litigating in Delaware will require substantial travel and inconvenience to the defendant with little benefit to Plaintiff.  The operative facts occurred outside Delaware.