Bausch & Lomb Incorporated v. SBH Holdings LLC
1:20-cv-01463
Overview
Case Number
1:20-cv-01463
Filing Date
2020-10-28
Status
Terminated
Termination Date
2025-04-10
Court
District Court, D. Delaware (ded)
Presiding Judge
Gregory B. Williams
Nature of Suit
830 Patent
Jurisdiction Type
Federal Question
Cause of Action
35:271 Patent Infringement
Jury Demand
Plaintiff
Parties
Counter Claimant
SBH Holdings LLC
Represented By
1 Attorneys ListedReal World Law, P.C.
Tel: +1 (610) 734-0750
727 Market Street, #4, Wilmington, DE 19801
Counter Defendant
PF Consumer Healthcare 1 LLC
Represented By
2 Attorneys ListedMorris, Nichols, Arsht & Tunnell LLP
Tel: +1 (302) 658-9200
1201 North Market Street, P.O. Box 1347
Morris, Nichols, Arsht & Tunnell LLP
Tel: +1 (302) 658-9200
1201 North Market Street, P.O. Box 1347
Bausch & Lomb Incorporated
Represented By
7 Attorneys ListedMorris, Nichols, Arsht & Tunnell LLP
Tel: +1 (302) 658-9200
1201 North Market Street, P.O. Box 1347
Morris, Nichols, Arsht & Tunnell LLP
Tel: +1 (302) 658-9200
1201 North Market Street, P.O. Box 1347
Court & Judges
Court
District Court, D. Delaware (ded)
Presiding Judge
Gregory B. Williams
Docket Entries
COMPLAINT filed with Jury Demand against SBH Holdings LLC - Magistrate Consent Notice to Pltf. (Filing fee $400, receipt number ADEDC-3297349.) - filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet)(kmd) (Entered: 10/28/2020)
2020-10-28
1
COMPLAINT filed with Jury Demand against SBH Holdings LLC - Magistrate Consent Notice to Pltf. (Filing fee $400, receipt number ADEDC-3297349.) - filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet)(kmd) (Entered: 10/28/2020)
2020-10-28
2
COMPLAINT filed with Jury Demand against SBH Holdings LLC - Magistrate Consent Notice to Pltf. (Filing fee $400, receipt number ADEDC-3297349.) - filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet)(kmd) (Entered: 10/28/2020)
2020-10-28
2
COMPLAINT filed with Jury Demand against SBH Holdings LLC - Magistrate Consent Notice to Pltf. (Filing fee $400, receipt number ADEDC-3297349.) - filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet)(kmd) (Entered: 10/28/2020)
2020-10-28
2
COMPLAINT filed with Jury Demand against SBH Holdings LLC - Magistrate Consent Notice to Pltf. (Filing fee $400, receipt number ADEDC-3297349.) - filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet)(kmd) (Entered: 10/28/2020)
2020-10-28
2
Notice, Consent and Referral forms re: U.S. Magistrate Judge jurisdiction. (kmd) (Entered: 10/28/2020)
2020-10-28
1
Report to the Commissioner of Patents and Trademarks for Patent/Trademark Number(s) 6,660,297 B2; 8,603,522 B2. (kmd) (Entered: 10/28/2020)
2020-10-28
1
Disclosure Statement pursuant to Rule 7.1: identifying Corporate Parent Bausch Health Companies Inc., Corporate Parent Bausch Health Americas, Inc., Corporate Parent V-BAC Holding Corp., Corporate Parent Bausch + Lomb OPS B.V. - filed by Bausch & Lomb Incorporated. (kmd) (Entered: 10/28/2020)
2020-10-28
1
Disclosure Statement pursuant to Rule 7.1: identifying Corporate Parent Pfizer Inc., Corporate Parent GlaxoSmithKline PLC, Corporate Parent GlaxoSmithKline Consumer Healthcare Holdings (No. 2) Limited, Corporate Parent GlaxoSmithKline Consumer Healthcare Holdings Limited, Corporate Parent PF Consumer Healthcare Holdings LLC for PF Consumer Healthcare 1 LLC - filed by PF Consumer Healthcare 1 LLC. (kmd) (Entered: 10/28/2020)
2020-10-28
1
Summonses Issued (please complete the top portion of the form and print out for use/service). (kmd) (Entered: 10/28/2020)
2020-10-28
1
SUMMONS Returned Executed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. SBH Holdings LLC served on 10/29/2020, answer due 11/19/2020. (Blumenfeld, Jack) (Entered: 10/29/2020)
2020-10-29
1
Case Assigned/Reassigned
2020-11-04
1
No Actions
Case Assigned to Judge Leonard P. Stark. Please include the initials of the Judge (LPS) after the case number on all documents filed. (rjb)
2020-11-04
1
No Actions
MOTION to Dismiss for Insufficiency of Process - filed by SBH Holdings LLC. (Brown, Glenn) (Entered: 11/19/2020)
2020-11-19
1
OPENING BRIEF in Support re 8 MOTION to Dismiss for Insufficiency of Process filed by SBH Holdings LLC.Answering Brief/Response due date per Local Rules is 12/3/2020. (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix)(Brown, Glenn) (Entered: 11/19/2020)
2020-11-19
1
NOTICE OF MOTION by SBH Holdings LLC ; (Brown, Glenn) (Entered: 11/19/2020)
2020-11-19
1
STATEMENT re 8 MOTION to Dismiss for Insufficiency of Process by SBH Holdings LLC. (Brown, Glenn) (Entered: 11/19/2020)
2020-11-19
1
Disclosure Statement pursuant to Rule 7.1: No Parents or Affiliates Listed filed by SBH Holdings LLC. (Brown, Glenn) (Entered: 11/19/2020)
2020-11-19
1
ANSWERING BRIEF in Opposition re 8 MOTION to Dismiss for Insufficiency of Process filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.Reply Brief due date per Local Rules is 12/10/2020. (Blumenfeld, Jack) (Entered: 12/03/2020)
2020-12-03
1
REPLY BRIEF re 8 MOTION to Dismiss for Insufficiency of Process filed by SBH Holdings LLC. (Brown, Glenn) (Entered: 12/10/2020)
2020-12-10
1
MEMORANDUM OPINION re 8 motion to dismiss. Signed by Judge Leonard P. Stark on 3/23/22. (ntl) (Entered: 03/23/2022)
2022-03-23
1
ORDER re 15 Memorandum Opinion -- 8 MOTION to Dismiss filed by SBH Holdings LLC is DENIED. Signed by Judge Leonard P. Stark on 3/23/22. (ntl) (Entered: 03/23/2022)
2022-03-23
1
ORAL ORDER: This case has been assigned to the District of Delaware's Vacant Judgeship ("VAC"). Detailed information relating to VAC cases may be found in the Court's Announcement of March 3, 2022 and Standing Order No. 2022-3 (March 16, 2022), which are available on the Court's website. Consistent with the foregoing Announcement and Standing Order, IT IS HEREBY ORDERED that: The parties shall file the "Notice of Consent or Absence of Consent to Proceed Before A United States Magistrate Judge," being docketed along with the instant Order, no later than fourteen (14) days after the date of this Order. IT IS FURTHER ORDERED that any order referring any part of this case to a Magistrate Judge is VACATED. Unless the parties consent to having a Magistrate Judge handle this case, a referral order will be entered to permit a Magistrate Judge (to be selected by the Court) to do only the following: (a) adjudicate discovery (including fact and expert discovery) and protective order disputes; (b) issue or modify a scheduling order; (c) review stipulated orders and pro hac vice motions; and (d) review requests for mediation in cases other than patent and securities cases. IT IS FURTHER ORDERED that any scheduling order that has been entered in this case is AMENDED such as follows: (a) the dates for any motions hearings are VACATED; and (b) the dates for any claim construction hearings are VACATED. Issued by the Clerk of Court on 3/23/22. (ntl) (Entered: 03/23/2022)
2022-03-23
1
VAC Notice, Consent, Non-Consent, Magistrate Referral (ntl) (Entered: 03/23/2022)
2022-03-23
1
Case Assigned/Reassigned
2022-03-23
1
No Actions
Case Assigned (Vacant Judgeship 2022)
2022-03-23
1
No Actions
Order
2022-03-23
1
No Actions
Case Reassigned to Vacant Judgeship (2022). Please include initials of VAC after the case number on all documents filed. (ntl)
2022-03-23
1
No Actions
Case Reassigned to Judge Leonard P. Stark of the United States Court of Appeals for the Federal Circuit. Please include the initials of the Judge (LPS) after the case number on all documents filed. (ntl)
2022-03-23
1
No Actions
ANSWER to 1 Complaint, with 12 Jury Demand, COUNTERCLAIM against All Plaintiffs by SBH Holdings LLC.(Brown, Glenn) (Entered: 04/01/2022)
2022-04-01
1
STIPULATION TO EXTEND TIME for the parties to submit the Notice of Consent to April 13, 2022 - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 04/04/2022)
2022-04-04
1
SO ORDERED
2022-04-04
1
No Actions
SO ORDERED, re 20 STIPULATION TO EXTEND TIME for the parties to submit the Notice of Consent to April 13, 2022 filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. ORDERED by Judge Maryellen Noreika on 4/4/2022. (mdb)
2022-04-04
1
No Actions
VAC Magistrate Non-Consent completed by the parties filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Blumenfeld, Jack) (Entered: 04/12/2022)
2022-04-12
1
ORAL ORDER: The parties having filed the appropriate form advising the Court that they do not unanimously consent to the jurisdiction of a Magistrate Judge, IT IS HEREBY ORDERED that, until further order of the Court, this case will remain assigned to the VAC (2022) docket. IT IS FURTHER ORDERED that this case is referred to Magistrate Judge Christopher J. Burke solely for the following purposes: (1) to adjudicate discovery (including fact and expert discovery) and protective order disputes; (2) to issue or modify a scheduling order; (3) to review stipulated orders and pro hac vice motions; and (4) to review requests for mediation in cases other than patent and securities cases. Issued by the Clerk of Court on 4/13/22. (ntl) (Entered: 04/13/2022)
2022-04-13
1
Order Referring Case to Magistrate Judge
2022-04-13
1
No Actions
ANSWER to 19 Answer to Complaint, Counterclaim // Plaintiffs' Answer to the Counterclaims of Defendant SBH Holdings LLC - by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 04/22/2022)
2022-04-22
1
ORAL ORDER: IT IS HEREBY ORDERED that the parties shall meet and confer and discuss, in person and/or by telephone, each of the matters listed on Judge Burke's Case Management Checklist (Checklist). At the time called for by Standing Order No. 2022-3, the parties shall jointly file the following: (i) a copy of the Checklist, indicating the names of Lead Counsel and Delaware Counsel for each party; (ii) a proposed Scheduling Order, which is consistent with Judge Burkes "Rule 16 Scheduling Order - Patent"; and (iii) a letter, not to exceed three pages, that contains the following: (a) a description of what this case is about; (b) the parties' positions regarding any disputes in the proposed Scheduling Order, and (c) a list of the three most significant topics (other than Scheduling Order disputes) discussed during the parties review of the Checklist items, along with a brief description as to what was discussed as to those topics. The proposed Scheduling Order shall not contain dates for motions hearings or for a pretrial conference or trial. Thereafter, the Court may schedule a Case Management Conference/Rule 16 Scheduling Conference to be held with Judge Burke. The Checklist and Scheduling Order can be found on Judge Burke's portion of the District Court's website. Ordered by Judge Christopher J. Burke on 4/27/2022. (dlb) (Entered: 04/27/2022)
2022-04-27
1
Oral Order
2022-04-27
1
No Actions
Remark re Newer Attorneys
2022-04-27
1
No Actions
Remark
2022-04-27
1
No Actions
Remark: The parties should follow the Court's Standing Order Regarding Courtesy Copies, a copy of which is found on Judge Burke's portion of the District Court's webpage: CJB Standing Order re Copies (dlb)
2022-04-27
1
No Actions
REMARK: The parties should be aware that the Court encourages the participation of newer attorneys in courtroom proceedings and at oral argument. Please see the Court's Standing Order Regarding Courtroom Opportunities for Newer Attorneys, a link to which is provided here for the parties' convenience:http://www.ded.uscourts.gov/sites/ded/files/forms/StandingOrder2017.pdf (dlb)
2022-04-27
1
No Actions
MOTION for Pro Hac Vice Appearance of Attorney Frear Stephen Schmid - filed by SBH Holdings LLC. (Attachments: # 1 Appendix certification of counsel)(Brown, Glenn) (Entered: 06/23/2022)
2022-06-23
1
MOTION for Pro Hac Vice Appearance of Attorney Thomas Freiburger - filed by SBH Holdings LLC. (Brown, Glenn) (Entered: 06/23/2022)
2022-06-23
1
SO ORDERED
2022-07-12
1
No Actions
SO ORDERED D.I. 26 MOTION for Pro Hac Vice Appearance of Attorney Thomas Freiburger filed by SBH Holdings LLC, 25 MOTION for Pro Hac Vice Appearance of Attorney Frear Stephen Schmid filed by SBH Holdings LLC. Ordered by Judge Christopher J. Burke on 7/12/2022. (dlb)
2022-07-12
1
No Actions
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding proposed Scheduling Order. (Attachments: # 1 Text of Proposed Order, # 2 Case Management Checklist)(Fahnestock, Derek) (Entered: 07/22/2022)
2022-07-22
1
SCHEDULING ORDER: Joinder of Parties due by 4/7/2023. Amended Pleadings due by 4/7/2023. Fact Discovery completed by 12/22/2023. Opening Expert Reports due by 2/20/2024. Rebuttal Expert Reports due by 4/5/2024. Expert Discovery due by 7/2/2024. Status Report due by 7/1/2023. Dispositive Motions due by 9/3/2024. Claim Construction Opening Brief due by 3/21/2023. Claim Construction Answering Brief due by 4/21/2023. Claim Construction Reply Brief due by 5/5/2023. Claim Construction Surreply Brief due by 5/19/2023. See order for further details and deadlines. Signed by Judge Christopher J. Burke on 7/22/2022. (dlb) (Entered: 07/25/2022)
2022-07-25
1
ORAL ORDER: With the parties having no disputes as to the form of the proposed Scheduling Order (D.I. 28), the Court has today entered that Order. To the extent that either party wishes the Court to schedule an in-person or telephonic Case Management Conference at this time, they should so inform the Court by letter. To the extent that the parties do not do so, the Court will not set a conference at this time. Ordered by Judge Christopher J. Burke on 7/25/2022. (dlb) (Entered: 07/25/2022)
2022-07-25
1
Oral Order
2022-07-25
1
No Actions
STIPULATION TO EXTEND TIME for the parties to submit a proposed protective order to August 5, 2022 - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 07/29/2022)
2022-07-29
1
SO ORDERED
2022-07-29
1
No Actions
SO ORDERED D.I. 30 STIPULATION TO EXTEND TIME for the parties to submit a proposed protective order to August 5, 2022 filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. Ordered by Judge Christopher J. Burke on 7/29/2022. (mlc)
2022-07-29
1
No Actions
NOTICE OF SERVICE of (1) Plaintiffs' Initial Disclosures of Accused Products, (2) Plaintiffs' Initial Discovery Disclosures Pursuant to Paragraph 3 of the Default Standard for Discovery and (3) Plaintiffs' Rule 26(a)(1) Initial Disclosures - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 08/01/2022)
2022-08-01
1
STIPULATION TO EXTEND TIME for the parties to submit a proposed protective order to August 12, 2022 - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 08/05/2022)
2022-08-05
1
SO ORDERED
2022-08-08
1
No Actions
SO ORDERED D.I. 32 STIPULATION TO EXTEND TIME for the parties to submit a proposed protective order to August 12, 2022 filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. Ordered by Judge Christopher J. Burke on 8/8/2022. (dlb)
2022-08-08
1
No Actions
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding request for the scheduling of a discovery teleconference. (Fahnestock, Derek) (Entered: 08/11/2022)
2022-08-11
1
ORAL ORDER Setting Teleconference: The Court has reviewed the parties' August 11, 2022 letter requesting a discovery dispute teleconference regarding two discovery disputes, both relating to the protective order. (D.I. 33) It hereby ORDERS that the procedures for resolving a discovery dispute set out in the Scheduling Order will be modified as follows with regard to these disputes: (1) The parties shall file a joint "Motion for Teleconference to Resolve Discovery Dispute," the text of which can be found in the "Forms" tab of Judge Burke's page on the District Court's website.; (2) A discovery dispute teleconference is set for September 12, 2022 at 2:00 p.m. before Judge Christopher J. Burke.; (3) By no later than September 2, 2022, the parties shall file a joint letter brief, of no more than six (6) single-spaced pages, in no less than 12-point font, that sets out their respective positions on the issues. The parties should work together to ensure that in this joint letter brief, the parties are not only setting out their own positions, but are also responding to the other side's arguments. That will mean that prior to the filing of the brief, the parties will have to share their respective arguments with each other in some way (i.e., via a further meet and confer, or by exchanging drafts of their portion of the brief beforehand, or something like that).; (4) The parties should also consult and follow Judge Burke's "Guidelines for Discovery Disputes," which is found in the "Guidelines" tab on Judge Burke's portion of the District Court's website.; (5) By no later than September 2, 2022, the parties shall jointly provide the Court's Courtroom Deputy, Ms. Benyo, with a dial-in number via e-mail to use for the call.; and (6) The Court may choose to resolve the dispute prior to the telephone conference and will, in that event, cancel the conference (however, if any party advises the Court in advance that a newer attorney will argue the dispute, see Standing Order Regarding Courtroom Opportunities for Newer Attorneys, https://www.ded.uscourts.gov/sites/ded/files/StandingOrder2017.pdf, then the Court will go forward with the conference).. Signed by Judge Christopher J. Burke on 8/12/2022. (dlb) (Entered: 08/12/2022)
2022-08-12
1
STIPULATION TO EXTEND TIME for Plaintiffs to submit any necessary proposed orders to provide licenses and settlement agreements to August 19, 2022 - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 08/12/2022)
2022-08-12
1
Order Setting Teleconference
2022-08-12
1
No Actions
SO ORDERED
2022-08-15
1
No Actions
SO ORDERED D.I. 35 STIPULATION TO EXTEND TIME for Plaintiffs to submit any necessary proposed orders to provide licenses and settlement agreements to August 19, 2022 filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. Ordered by Judge Christopher J. Burke on 8/15/2022. (dlb)
2022-08-15
1
No Actions
MOTION for Hearing // Joint Motion for Teleconference to Resolve Protective Order Dispute - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 08/17/2022)
2022-08-17
1
PROPOSED ORDER Regarding Production of Settlement and License Agreements -- re 28 Scheduling Order,, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Letter to The Honorable Christopher J. Burke)(Fahnestock, Derek) (Entered: 08/19/2022)
2022-08-19
1
ORDER Regarding Production of Settlement and License Agreements. Signed by Judge Christopher J. Burke on 8/19/2022. (mlc) (Entered: 08/19/2022)
2022-08-19
1
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding Proposed Protective Order Disputes. (Attachments: # 1 Exhibit 1 (Proposed Stipulated Protective Order))(Fahnestock, Derek) (Entered: 09/02/2022)
2022-09-02
1
Case Assigned/Reassigned
2022-09-07
1
No Actions
Case Reassigned to Judge Gregory B. Williams. Please include the initials of the Judge (GBW) after the case number on all documents filed. (smg)
2022-09-07
1
No Actions
ORAL ORDER REFERRING CASE to Magistrate Judge Christopher J. Burke: IT IS HEREBY ORDERED that the above-captioned case is referred to Magistrate Judge Christopher J. Burke to hear and resolve all pre-trial matters up to and including expert discovery matters (but not including summary judgment motions, Daubert motions, pre-trial motions in limine or the pre-trial conference), subject to 28 U.S.C. § 636(b) and any further Order of the Court. ORDERED by Judge Gregory B. Williams on 9/12/22. (ntl) (Entered: 09/12/2022)
2022-09-12
1
ORAL ORDER: With regard to the parties' disputes over the protective order, (D.I. 36), discussed in today's teleconference, the Court hereby ORDERS as follows: (1) With regard to the dispute as to Paragraph 3, the parties shall further meet and confer and file a joint status letter, of no more than 3 single-spaced pages, by no later than September 19, 2022. During the meet and confer, the parties shall discuss: (a) which specific Defendant employees Defendant is proposing should have access to confidential information, and (b) the extent to which it could be asserted that those persons engage in competitive decision-making (and why or why not). To the extent that the parties are able to resolve their dispute (or resolve it in part) as to Paragraph 3, they can so advise the Court in their joint status letter. To the extent that any portion of their dispute as to Paragraph 3 remains in effect after further meeting and conferring, the parties can describe their positions in that regard.; (2) With regard to the dispute as to Paragraph 7, the Court ADOPTS Plaintiffs' proposal. The Court does so because since the proposed Protective Order in Paragraph 3 already sets out the status quo as to the limited number of persons who should be able to view Confidential and Highly Confidential Information, it makes good sense that, if in the future a party seeks to expand the scope of the status quo, that that party would have the burden to demonstrate good cause as to why the Protective Order should be modified in that way.; and (3) After receiving the parties' status letter and resolving the dispute as to Paragraph 3, the Court will thereafter order the parties to submit a revised Protective Order that incorporates the Court's decision(s). Ordered by Judge Christopher J. Burke on 9/12/22. (mlc) (Entered: 09/12/2022)
2022-09-12
1
Discovery Conference
2022-09-12
1
No Actions
Oral Order
2022-09-12
1
No Actions
Order Referring Case to Magistrate Judge
2022-09-12
1
No Actions
Minute Entry for proceedings held before Judge Christopher J. Burke - Discovery dispute teleconference held on 9/12/2022 regarding the parties' protective order dispute, (D.I. 36). The Court heard argument from the parties. The Court will issue an order providing guidance to the parties regarding their disputes. (Court Reporter Deanna Warner. Clerk: M. Crawford) Appearances: D. Fahnestock, S. Kline for Plaintiffs; S. Schmid, G. Brown for Defendant. (mlc)
2022-09-12
1
No Actions
ORAL ORDER: The Court hereby ORDERS that the Markman Hearing is set for 6/15/2023 at 11:00 AM in Courtroom 2A before Judge Christopher J. Burke. Ordered by Judge Christopher J. Burke on 9/13/2022. (mlc) (Entered: 09/13/2022)
2022-09-13
1
~Util - Set Hearings AND Oral Order
2022-09-13
1
No Actions
STIPULATION TO EXTEND TIME for the parties to meet and confer and file a joint status letter to September 26, 2022 - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 09/19/2022)
2022-09-19
1
SO ORDERED
2022-09-19
1
No Actions
SO ORDERED D.I. 43 STIPULATION TO EXTEND TIME for the parties to meet and confer and file a joint status letter to September 26, 2022 filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated.Ordered by Judge Christopher J. Burke on 9/19/22. (mlc)
2022-09-19
1
No Actions
STIPULATION TO EXTEND TIME for the parties to meet and confer and file a joint status letter pursuant to D.I. 41 to October 3, 2022 - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 09/26/2022)
2022-09-26
1
SO ORDERED
2022-09-26
1
No Actions
SO ORDERED D.I. 44 STIPULATION TO EXTEND TIME for the parties to meet and confer and file a joint status letter pursuant to D.I. 41 to October 3, 2022 filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. Ordered by Judge Christopher J. Burke on 9/26/2022. (mlc)
2022-09-26
1
No Actions
STIPULATION TO EXTEND TIME for the parties to meet and confer and file a joint status letter pursuant to D.I. 41 to October 12, 2022 - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 10/03/2022)
2022-10-03
1
~Util - Set Deadlines AND SO ORDERED
2022-10-03
1
No Actions
SO ORDERED D.I. 45 STIPULATION TO EXTEND TIME for the parties to meet and confer and file a joint status letter pursuant to D.I. 41 to October 12, 2022 filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. Ordered by Judge Christopher J. Burke on 10/03/2022. (smg)
2022-10-03
1
No Actions
Letter to The Honorable Christopher J. Burke from The Parties regarding Paragraph 3 of the Protective Order Disputes - re 41 Oral Order,,,,,,,. (Attachments: # 1 Ex. 1)(Fahnestock, Derek) (Entered: 10/12/2022)
2022-10-12
1
ORAL ORDER: The Court, having reviewed the parties' protective order dispute motion, (D.I. 36 ), and the parties' letter briefs relating thereto, (D.I. 39 ; D.I. 46 ), and having heard argument on September 12, 2022, hereby ORDERS that with regard to the disputed language in Paragraph 3 of the proposed protective order, the Court ADOPTS Plaintiffs proposed language, (D.I. 39, ex. 1 at 4), for the following reasons: (1) In considering the parties dispute with respect to whether Defendants Finance Manager (Belinda Conrad) should be permitted to have access to confidential information, the Court applies the familiar legal standard set out in cases like PhishMe, Inc. v. Wombat Sec. Techs., Inc., Civil Action No. 16-403-LPS-CJB, 2017 WL 4138961, at *2 (D. Del. Sept. 8, 2017). In the instant scenario where no protective order has yet been entered, the party seeking the more restrictive provision (here, Plaintiffs) bears the burden to demonstrate good cause for the imposition of the disputed portion of the protective order at issue that is, Plaintiffs bear the burden of demonstrating why, after a balancing of the risk and harm factors, that balance weighs in favor of their proposal. See Toshiba Samsung Storage Tech. Korea Corp. v. LG Elecs., Inc., Civil Action No. 15-691-LPS-CJB, 2016 WL 447794, at *1 n.1 (D. Del. Feb. 4, 2016). Here, based on the record that has been provided to the Court, both of those factors weigh in Plaintiffs favor.; (2) With respect to the risk of inadvertent disclosure and improper use of Plaintiffs confidential information, on the one hand, Ms. Conrad is not a competitive decisionmaker herself. (D.I. 46, ex. 1 at 1) And Defendant has put real thought into how Ms. Conrad would take specific precautions to ensure that competitive material is not inadvertently disclosed. (Id. at 2) These factors can help support Defendant's arguments that the risk of inadvertent disclosure is not outsized. See PhishMe, Inc., 2017 WL 4138961, at *4-5, *8. But on the other hand: (a) Ms. Conrad directly reports to Defendants President/CEO (Alain Margo), who is one of Defendants two competitive decisionmakers, (D.I. 46, ex. 1 at 1; see also D.I. 46 at 1), and while she may not participate in sales and marketing management meetings where competitive issues are discussed, Ms. Conrad does provide the competitive decisionmakers with requested accounting reports, and she discusses these reports with them if necessary, (id., ex. 1 at 1); (b) All of this is happening at a very small company comprised of less than 10 people.; and (c) It is undisputed that the parties are real competitors in the eye vitamin market, (see D.I. 46 at 1), which heightens the risk of harm to Plaintiffs should inadvertent disclosure occur. These are facts that make it more likely that Ms. Conrads access to Plaintiffs confidential information could be inadvertently misused or disclosed, see PhishMe, Inc., 2017 WL 4138961, at *4, *7, *8, and in the Court's view, they result in the "risk" factor weighing slightly in favor of Plaintiffs position.; (3) Having found that there is some risk of inadvertent disclosure and improper use of Plaintiffs confidential information were Ms. Conrad permitted access to it, the Court must now balance that risk against the prejudice to Defendant that would result if Ms. Conrad were prohibited from having access to Plaintiffs confidential materials. Had Defendant actually provided any information as to how Ms. Conrad would be participating in this litigation, or why it would be helpful to it for her to gain access to Plaintiffs confidential information, this factor might have redounded to Defendant's benefit and caused the decision to go its way. But Defendant did not do so. Instead, it said only that such a response would call[] for work-product and attorney-client communications[,] (D.I. 46 at 3) -- even though this is a factor of the relevant legal test that the Court must consider (and one that parties regularly provide information about to the Court). So in light of that non-answer, the "harm" factor redounds in Plaintiffs' favor too.; (4) Therefore, since the risk of inadvertent disclosure outweighs the (unexplained) potential harm to Defendant were its proposal to be rejected, Plaintiffs' proposal is ADOPTED.; (5) By no later than October 21, 2022, the parties shall submit a proposed protective order reflecting the ruling herein and in the Court's prior order. (D.I. 41 ); and (6) The Court would consider a request to modify the Protective Order in the future as to this issue, if the evidence warrants it. Signed by Judge Christopher J. Burke on 10/18/2022. (apk) (Entered: 10/18/2022)
2022-10-18
1
~Util - Terminate Motions AND Oral Order
2022-10-18
1
No Actions
PROPOSED ORDER -- [Proposed] Protective Order -- re 47 Oral Order,,,,,,,,,,,,,,,,,,, Terminate Motions,,,,,,,,,,,,,,,,,, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Cover Letter to The Honorable Christopher J. Burke)(Fahnestock, Derek) (Entered: 10/21/2022)
2022-10-21
1
PROTECTIVE ORDER. Signed by Judge Christopher J. Burke on 10/24/22. (mlc) (Entered: 10/24/2022)
2022-10-24
1
NOTICE OF SERVICE of Bausch & Lomb's Initial Infringement Contentions Against SBH Holdings LLC - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 10/31/2022)
2022-10-31
1
NOTICE OF SERVICE of Plaintiffs' Disclosure of Claim Term filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 01/17/2023)
2023-01-17
1
NOTICE OF SERVICE of Plaintiffs' Proposed Claim Constructions with Citations to Intrinsic Evidence - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 02/16/2023)
2023-02-16
1
NOTICE OF SERVICE of (1) Plaintiff's First Set of Requests to Defendant for the Production of Documents and Things and (2) Plaintiff's First Set of Interrogatories to Defendant - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 03/01/2023)
2023-03-01
1
CLAIM Construction Chart by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 03/01/2023)
2023-03-01
1
MOTION for Claim Construction re 54 Claim Construction Chart - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 03/01/2023)
2023-03-01
1
MOTION for Cross Claim Construction - filed by SBH Holdings LLC. Motions referred to Christopher J. Burke.(Brown, Glenn) (Entered: 03/06/2023)
2023-03-06
1
- CORRECTING ENTRY
2023-03-06
1
No Actions
CORRECTING ENTRY: Entries made at D.I. 56 and 57 have been removed and will be refiled. The wrong docketing code was used. (dlb)
2023-03-06
1
No Actions
ORAL ORDER: The Court, having reviewed the parties' Joint Claim Construction Chart ("JCCC"), (D.I. 54 at 2 & ex. A at 2-3), hereby ORDERS that by no later than March 15, 2023, Defendant shall submit to Plaintiff its proposed constructions for "comprising on a daily dosage basis" and "administering a daily dosage" (as opposed to statements about when infringement occurs, which is what is currently included in the JCCC). Ordered by Judge Christopher J. Burke on 3/9/2023. (dlb) (Entered: 03/09/2023)
2023-03-09
1
Oral Order
2023-03-09
1
No Actions
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding Defendant's refusal to comply with the Court's Oral Order of March 9, 2023. (Attachments: # 1 Exhibit A)(Fahnestock, Derek) (Entered: 03/16/2023)
2023-03-16
1
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding Defendant's refusal to comply with the Court's Oral Order of March 9, 2023. (Attachments: # 1 Exhibit A)(Fahnestock, Derek) (Entered: 03/16/2023)
2023-03-16
2
ORAL ORDER: Having reviewed Plaintiffs' March 16, 2023 letter, (D.I. 58), regarding the Court's March 9, 2023 oral order, (D.I. 57), the Court hereby ORDERS that Defendant shall submit a responsive letter of no longer than one single-spaced page by 5:00 p.m. on March 17, 2023. Ordered by Judge Christopher J. Burke on 3/16/2023. (dlb) (Entered: 03/16/2023)
2023-03-16
1
Oral Order
2023-03-16
1
No Actions
Letter to Judge Burke from Atty Stephen Schmid regarding Per D.I. 59. (Brown, Glenn) (Entered: 03/17/2023)
2023-03-17
1
ORAL ORDER: The Court, having reviewed the parties' March 16, 2023 and March 17, 2023 letters, (D.I. 58; D.I. 60), hereby ORDERS as follows with respect to the parties' disputes relating to the claim terms "comprising on a daily dosage basis" and "administering a daily dosage" (the "claim terms at issue"): (1) In the parties' Joint Claim Construction Chart ("JCCC"), Defendant proposed the following constructions for the claim terms at issue, respectively: "[a]ny direct infringement can only occur when a customer ingests the described dose" and "[d]irect infringement occurs only when dosage taken by customer[.]" (D.I. 54, ex. A at 2-3; see also D.I. 54 at 2 (Plaintiffs objecting to "Defendant's purported construction of [the claim terms at issue]... for failing to provide any proposed construction for these terms and improperly containing attorney argument on infringement")); (2) The Court ordered Defendant to submit to Plaintiffs by March 15, 2023 its proposed constructions for the claim terms at issue "as opposed to statements about when infringement occurs, which is what is currently included in the JCCC" (the "March oral order"). (D.I. 57); see, e.g., Sprint Commc'ns Co. L.P. v. Cox Commc'ns Inc., 302 F. Supp. 3d 597, 609 (D. Del. 2017) ("A claim is construed in the light of the claim language, the other claims, the prior art, the prosecution history, and the specification, not in light of the accused device.") (quoting SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1118 (Fed. Cir. 1985) (en banc) (emphasis omitted)); see also Seachange Int'l, Inc. v. C-COR, Inc., 413 F.3d 1361, 1377 (Fed. Cir. 2005) ("A determination of infringement is a two-step process. The court must first correctly construe the asserted claims, and then compare the properly construed claims to the allegedly infringing devices, systems, or methods.") (internal quotation marks and citation omitted).; (3) Plaintiffs alerted the Court that Defendant failed to comply with the March oral order, (D.I. 58 & ex. A), and the Court subsequently ordered Defendant to submit a responsive letter, (D.I. 59).; (4) In its responsive letter, Defendant did not provide a sufficient explanation for its failure to comply with the March oral order. (D.I. 60); (5) Therefore, Defendant's proposed constructions for the claim terms at issue in the JCCC are hereby STRICKEN. Defendant may not propose new constructions for the claim terms at issue.; (6) That said, the Court declines to immediately adopt Plaintiffs' constructions for the claim terms at issue right now (as Plaintiffs suggested the Court should). (See D.I. 58) The goal of the claim construction process is to get to the right answer (after engaging in meaningful analysis) regarding the scope of disputed claim terms. In their opening claim construction brief, Plaintiffs should address why their proposed constructions are correct for the claim terms at issue. Defendant may respond to Plaintiffs' arguments in that regard in its answering claim construction brief.; and (7) Defendant should be mindful that failure to comply with Court orders is the type of conduct that may be considered if the Court is later asked to determine if this is an exceptional case under 35 U.S.C. § 285, or whether other similar sanctions should be considered in the case. Cf. Polaris Innovations Ltd. v. Broadcom, Inc., CIVIL ACTION NO. 2:22-CV-00347-JRG, 2023 WL 2542598, at *2 (E.D. Tex. Mar. 15, 2023). Ordered by Judge Christopher J. Burke on 3/20/2023. (dlb) (Entered: 03/20/2023)
2023-03-20
1
Oral Order
2023-03-20
1
No Actions
NOTICE OF SERVICE of Plaintiffs' Opening Claim Construction Brief - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 03/21/2023)
2023-03-21
1
MOTION for Judgment on the Pleadings - filed by SBH Holdings LLC. (Attachments: # 1 Notice of Motion, # 2 Affidavit Thomas Freiburger, # 3 Exhibit 1-17 paginated)(Brown, Glenn) (Entered: 04/04/2023)
2023-04-04
1
CERTIFICATE OF SERVICE of Certificate of Service by SBH Holdings LLC (Brown, Glenn) (Entered: 04/04/2023)
2023-04-04
1
MOTION REFERRED: 63 MOTION for Judgment on the Pleadings Motion referred to Christopher J. Burke.(dlb)
2023-04-04
1
No Actions
Motions Referred
2023-04-05
1
No Actions
MOTION for Pro Hac Vice Appearance of Attorney Scott K. Reed, Steven C. Kline, Daniel H. Kaltman and Monica Chou - filed by Bausch & Lomb Incorporated. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 04/06/2023)
2023-04-06
1
STIPULATION TO EXTEND TIME for Plaintiffs to respond to Defendant's Motion for Judgment on the Pleadings (D.I. 63) to April 28, 2023 - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 04/10/2023)
2023-04-10
1
NOTICE OF SERVICE of Bausch & Lomb's Objections and Responses to Defendant's First Set of Interrogatories (Nos. 1-13) - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 04/10/2023)
2023-04-10
1
Letter to Judge Burke from atty Frear Stephen Schmid regarding Stay of scheduled proceedings - re 28 Scheduling Order,,. (Brown, Glenn) (Entered: 04/10/2023)
2023-04-10
1
ORAL ORDER: The Court, having reviewed Defendant's April 10, 2023 letter seeking to stay the case, (D.I. 68), hereby ORDERS that by no later than April 12, 2023, Defendant shall file an accompanying "Motion to Stay" for the Court's administrative purposes, (D.I. 28 at para. 10(a)). Ordered by Judge Christopher J. Burke on 4/11/2023. (dlb) (Entered: 04/11/2023)
2023-04-11
1
MOTION to Stay re 68 Letter addressed in letter brief - filed by SBH Holdings LLC. Motions referred to Christopher J. Burke.(Brown, Glenn) (Entered: 04/11/2023)
2023-04-11
1
SO ORDERED
2023-04-11
1
No Actions
Order Setting Briefing Schedule - open, ans, reply, surreply AND SO ORDERED
2023-04-11
1
No Actions
Oral Order
2023-04-11
1
No Actions
SO ORDERED D.I. 65 MOTION for Pro Hac Vice Appearance of Attorney Scott K. Reed, Steven C. Kline, Daniel H. Kaltman and Monica Chou filed by Bausch & Lomb Incorporated. Ordered by Judge Christopher J. Burke on 4/11/2023. (dlb)
2023-04-11
1
No Actions
SO ORDERED D.I. 66 STIPULATION TO EXTEND TIME for Plaintiffs to respond to Defendant's Motion for Judgment on the Pleadings (D.I. 63) to April 28, 2023 filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. Ordered by Judge Christopher J. Burke on 4/10/2023. (dlb)
2023-04-11
1
No Actions
RESPONSE to Motion re 70 MOTION to Stay re 68 Letter addressed in letter brief filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 04/17/2023)
2023-04-17
1
Letter to Judge Burke from Atty Stephen Schmid regarding Defendants reply letter. (Brown, Glenn) (Entered: 04/18/2023)
2023-04-18
1
ANSWERING BRIEF in Opposition re 63 MOTION for Judgment on the Pleadings - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.Reply Brief due date per Local Rules is 5/5/2023. (Attachments: # 1 Exhibits 1-2)(Fahnestock, Derek) (Entered: 04/28/2023)
2023-04-28
1
NOTICE OF SERVICE of Bausch & Lomb's Objections and Responses to Defendant's First Set of Requests for Production (Nos. 1-57) - filed by Bausch & Lomb Incorporated.(Fahnestock, Derek) (Entered: 04/28/2023)
2023-04-28
1
NOTICE OF SERVICE of Plaintiffs' Reply Claim Construction Brief - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 05/05/2023)
2023-05-05
1
REPLY BRIEF re 63 MOTION for Judgment on the Pleadings filed by SBH Holdings LLC. (Attachments: # 1 Exhibit exhibit 1)(Brown, Glenn) (Entered: 05/05/2023)
2023-05-05
1
ORAL ORDER: The Court, having reviewed Defendant's motion to stay ("Motion"), (D.I. 70), and the briefing related thereto, (D.I. 68; D.I. 71; D.I. 72), hereby ORDERS that the Motion is DENIED for the reasons that follow: (1) First, the Motion is denied because Defendant did not follow D. Del. Local Rule 7.1.1's requirements that, inter alia, the parties have an oral meet and confer in order to attempt to resolve the stay-related issues discussed in the Motion, before the Motion was filed. (D.I. 71 at 1) Defendant's assertion that actually attempting to follow the Local Rule's dictates would have been a "needless time consuming and expensive exercise in futility" is no excuse. (D.I. 72 at 1) If parties could decide not to follow Local Rules because they thought that the rules were not useful in their particular case, that would threaten the Court's ability to manage its docket. And it would also wrongfully turn parties into judges.; (2) The Court also denies the Motion on the merits. With regard to the "simplification of issues" factor, while Defendant's pending motion for judgment on the pleadings ("12(c) motion") could simplify the case to the greatest degree if it were granted in its entirety, (D.I. 63), there are also various ways in which it might not do so (i.e., if it is denied in its entirety, or if it is denied as to one of the two patents-in-suit). The Court has to take into account all of the possible ways that the 12(c) motion could come out in assessing this factor. When one also considers the various possible outcomes that would not favor efficiency, that renders this factor about neutral. See Astellas US LLC v. Curia Mo., Inc., Civil Action No. 22-199-CFC-CJB, D.I. 71 (D. Del. July 14, 2022).; (3) With regard to the "status of the case" factor, we are still in the midst of fact discovery, and we have not yet had a Markman hearing. Normally, that state of affairs would favor Defendant's Motion. But not on the facts of this case. The matter was filed way back in October 2020, and it was effectively stayed for approximately 15 months while Defendant's previously-filed motion to dismiss was pending. So taking into account that long delay, and the work this Court has already done on the motion to dismiss and other previously-filed motions, this case is not really in its "early" stages at all. In the Court's view, when you consider this additional context, then the "status of the case" factor too is neutral.; (4) With regard to the "undue prejudice" factor, this also is neutral. There is no question that the parties are competitors. (D.I. 47) That said, it appears as if the patents-in-suit have expired, (D.I. 72 at 2), and if so, then perhaps there would be no potential for additional harm from patent infringement during any stay. As for other potential prejudice to Plaintiffs, contrary to what Defendant asserts, (id. at 1), were the case stayed now, that stay might well be lengthy. In light of the Court's docket, it will not soon be able to resolve the 12(c) motion, which was filed late in this case and just finished briefing last week. (D.I. 76) Although delay alone does not typically amount to undue prejudice, the Court need not ignore it either.; and (5) With the stay factors each being no better than neutral for it, Defendant has not met its burden to demonstrate why the case should now be stayed. Thus, for this reason too, the Motion is denied. Ordered by Judge Christopher J. Burke on 5/10/2023. (dlb) (Entered: 05/12/2023)
2023-05-12
1
Oral Order
2023-05-12
1
No Actions
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding U.S. Patent No. 8,603,522 - re 77 Oral Order,,,,,,,,,,,,,,. (Fahnestock, Derek) (Entered: 05/22/2023)
2023-05-22
1
JOINT CLAIM CONSTRUCTION BRIEF - filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. (Fahnestock, Derek) (Entered: 05/25/2023)
2023-05-25
1
Joint APPENDIX re 79 Joint Claim Construction Brief - by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Plaintiff's Ex. A14 through Defendant's Ex. 3, # 2 Defendant's Ex. 4-23)(Fahnestock, Derek) (Entered: 05/25/2023)
2023-05-25
1
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding the June 15, 2023 Markman hearing. (Fahnestock, Derek) (Entered: 05/25/2023)
2023-05-25
1
NOTICE of Defendant's Supplemental Authority in Support of Motion for Judgment on the Pleadings by SBH Holdings LLC (Brown, Glenn) (Entered: 05/25/2023)
2023-05-25
1
ORAL ORDER: The Court, having reviewed the parties' May 25, 2023 letter regarding the Markman hearing (the "May 25 letter"), (D.I. 81), hereby ORDERS as follows: (1) In light of Plaintiffs' request for a hearing, the Court will hold one, even though Defendant does not feel argument is necessary. And the Court hereby ADOPTS Plaintiffs' proposal regarding time allocation. Three hours will be allocated for argument, to be split equally between the parties.; (2) With respect to the order of the terms and which side will present argument first for each term, the Court ADOPTS the proposals set out in the May 25 letter. (3) That said, due to a scheduling conflict, the Court must reschedule the date of the hearing. On or before June 9, 2023, the parties shall submit a joint letter to the Court (the "joint letter") noting any dates in August 2023 when they are jointly available for a rescheduled hearing.; (4) Additionally, on or before June 9, 2023, Delaware and lead counsel for the parties shall meet and confer and file an amended joint claim construction chart that sets forth the terms/issues that remain in dispute. The meet and confer shall focus on an attempt to reach agreement on any remaining disputed terms/issues where possible and on an attempt to focus the dispute over the remaining terms/issues in light of the parties' claim construction briefing. In their joint letter, the parties shall identify by name each individual who participated in this meet and confer, when and how that meet and confer occurred and how long it lasted. If no agreements on constructions have been reached or if no dispute has been narrowed on the meet and confer, the letter shall so state and the parties need not file an amended joint claim construction chart.; and (5) In the joint letter, the parties should also let the Court know if there is joint agreement to conduct the Markman hearing via videoconference. If there is joint agreement, the Court will do so; if there is not joint agreement, then the hearing will go forward as an in-person hearing in Courtroom 2A.Ordered by Judge Christopher J. Burke on 5/31/2023. (dlb) (Entered: 05/31/2023)
2023-05-31
1
1 - Terminate Deadlines and Hearings AND Oral Order
2023-05-31
1
No Actions
CLAIM Construction Chart by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 06/09/2023)
2023-06-09
1
Letter to The Honorable Christopher J. Burke from Derek. J. Fahnestock regarding Markman hearing - re 83 Oral Order,,,,,,,,, Terminate Deadlines and Hearings,,,,,,,,. (Fahnestock, Derek) (Entered: 06/09/2023)
2023-06-09
1
ORAL ORDER: The Court, having reviewed the parties' June 9, 2023 letter, (D.I. 85), hereby ORDERS as follows with respect to the Markman hearing: (1) From experience, the Court can say that having one party live in Court and the other party remote for a hearing does not facilitate a good back-and-forth on the issues. Therefore, because there is not joint agreement to conduct the Markman hearing via videoconference, the hearing will be in-person.; and (2) The Court is currently available on September 11, 14, 18, 19, 26 or 28 for the hearing. By no later than June 15, 2023, the parties shall jointly inform the Court's Courtroom Deputy, Ms. Benyo, by email which of those dates work for both parties. Ordered by Judge Christopher J. Burke on 6/12/2023. (dlb) (Entered: 06/12/2023)
2023-06-12
1
Oral Order
2023-06-12
1
No Actions
ORAL ORDER: The Court hereby ORDERS that the Markman hearing is rescheduled to September 26, 2023 at 11:00 a.m. in Courtroom 2A. Ordered by Judge Christopher J. Burke on 6/15/2023. (dlb) (Entered: 06/15/2023)
2023-06-15
1
Oral Order AND Set/Reset Scheduling Order Deadlines
2023-06-15
1
No Actions
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding interim status report. (Fahnestock, Derek) (Entered: 06/30/2023)
2023-06-30
1
Minute Entry for proceedings held before Judge Christopher J. Burke - Markman Hearing held on 9/26/2023. The Court heard argument from the parties regarding the disputed terms. (D.I. 55; D.I. 56) The Court took the matter under advisement. The Court ordered the parties to submit two corrected hard copies of the Joint Claim Construction Appendix by no later than September 27, 2023. Clerk: M. CrawfordAppearances: D. Fahnestock, S. Kline, M. Chou for Plaintiffs; G. Brown, S. Schmid, T. Freiburger for Defendant. (Court Reporter Stacy Ingram) (dlb)
2023-09-26
1
No Actions
Markman Hearing
2023-09-26
1
No Actions
NOTICE OF SERVICE of Bausch & Lomb's Final Infringement Contentions Against SBH Holdings LLC - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 11/01/2023)
2023-11-01
1
NOTICE to Take Deposition of Defendant SBH Holdings LLC Pursuant to Fed. R. Civ. P. 30(b)(6) on November 29, 2023 filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 11/03/2023)
2023-11-03
1
NOTICE to Take Deposition of Alain Magro on November 30, 2023 filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 11/03/2023)
2023-11-03
1
NOTICE to Take Deposition of Zac Denning on December 1, 2023 filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 11/03/2023)
2023-11-03
1
NOTICE OF SERVICE of Plaintiff's First Set of Requests for Admissions (Nos. 1-48) - filed by Bausch & Lomb Incorporated.(Fahnestock, Derek) (Entered: 11/09/2023)
2023-11-09
1
NOTICE of Service by SBH Holdings LLC (Brown, Glenn) (Entered: 11/15/2023)
2023-11-15
1
NOTICE OF SERVICE of Plaintiff's Second Set of Interrogatories to Defendant filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 11/22/2023)
2023-11-22
1
ORAL ORDER: The Court hereby advises the parties that it will not meet its aspirational goal of issuing the claim construction opinion within 60 days of the Markman hearing. Ordered by Judge Christopher J. Burke on 11/29/2023. (dlb) (Entered: 11/29/2023)
2023-11-29
1
Official Transcript of Markman Hearing held on 9/26/2023 before Judge Judge Burke. Court Reporter/Transcriber Stacy Ingram (Hawkins). Transcript may be viewed at the court public terminal or order/purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, it may be obtained through PACER. Redaction Request due 12/20/2023. Redacted Transcript Deadline set for 1/2/2024. Release of Transcript Restriction set for 2/27/2024. (dlb) (Entered: 11/29/2023)
2023-11-29
1
Oral Order
2023-11-29
1
No Actions
NOTICE OF SERVICE of Bausch & Lomb's Objections and Responses to Defendant's Second Set of Requests for Production (Nos. 58-62) - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 12/20/2023)
2023-12-20
1
MOTION for Extension of Time to to Secure expert reports - filed by SBH Holdings LLC. (Attachments: # 1 Certificate of Service of Motion for Extension of time to Secure expert reports)Motions referred to Christopher J. Burke.(Brown, Glenn) (Entered: 12/21/2023)
2023-12-21
1
NOTICE OF SERVICE of (1) Bausch & Lomb's Objections and Responses to Defendant's First Set of Requests for Admission (Nos. 1-18) and (1) Bausch & Lomb's Objections and Responses to Defendant's Second Set of Interrogatories (Nos. 14-23) - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 12/26/2023)
2023-12-26
1
STIPULATION TO EXTEND TIME for Plaintiffs to respond to Defendant's Motion for an Order Modifying the Deadline Dates Set Forth in the July 22, 2022 Scheduling Order (D.I. 99) to January 12, 2024 - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 12/28/2023)
2023-12-28
1
REPORT AND RECOMMENDATION regarding D.I. 63 MOTION for Judgment on the Pleadings filed by SBH Holdings LLC. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 1/12/2024. Signed by Judge Christopher J. Burke on 12/29/2023. (mlc) (Entered: 12/29/2023)
2023-12-29
1
ORAL ORDER: The Court, having reviewed Defendant's Motion to Modify Scheduling Order Deadlines, (D.I. 99), hereby ORDERS that Plaintiffs shall file a response of no more than three single-spaced pages, and Defendant shall file a reply of no more than two single-spaced pages. Ordered by Judge Christopher J. Burke on 1/3/2024. (mlc) (Entered: 01/03/2024)
2024-01-03
1
SO ORDERED D.I. 101 STIPULATION TO EXTEND TIME for Plaintiffs to respond to Defendant's Motion for an Order Modifying the Deadline Dates Set Forth in the July 22, 2022 Scheduling Order (D.I. 99) to January 12, 2024 filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. Ordered by Judge Christopher J. Burke on 1/3/24. (mlc)
2024-01-03
1
No Actions
SO ORDERED
2024-01-03
1
No Actions
Oral Order
2024-01-03
1
No Actions
OBJECTIONS by SBH Holdings LLC to 76 Reply Brief, 63 MOTION for Judgment on the Pleadings, 102 REPORT AND RECOMMENDATIONS re 63 MOTION for Judgment on the Pleadings filed by SBH Holdings LLC. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (n . (Attachments: # 1 Certificate of Compliance Certifiction of objections)(Brown, Glenn) (Entered: 01/11/2024)
2024-01-11
1
ANSWERING BRIEF in Opposition re 99 MOTION for Extension of Time to to Secure expert reports - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.Reply Brief due date per Local Rules is 1/19/2024. (Fahnestock, Derek) (Entered: 01/12/2024)
2024-01-12
1
REPLY to Response to Motion re 99 MOTION for Extension of Time to to Secure expert reports filed by SBH Holdings LLC. (Brown, Glenn) (Entered: 01/19/2024)
2024-01-19
1
RESPONSE TO OBJECTIONS by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC re 104 Objections, . (Fahnestock, Derek) (Entered: 01/25/2024)
2024-01-25
1
REPORT AND RECOMMENDATIONS regarding D.I. 55 MOTION for Claim Construction re 54 Claim Construction Chart filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated, and D.I. 56 MOTION for Cross Claim Construction filed by SBH Holdings LLC. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 2/22/2024. Signed by Judge Christopher J. Burke on 2/8/2024. (dlb) (Entered: 02/08/2024)
2024-02-08
1
ORAL ORDER: The Court, having reviewed Defendant's motion for an order modifying certain deadlines in the operative Scheduling Order ("Motion"), (D.I. 99), and the briefing related thereto, (D.I. 99; D.I. 105; D.I. 106), hereby ORDERS that the Motion is DENIED for the reasons that follow: (1) With the Motion, Defendant seeks to extend the deadlines from expert discovery onward by at least 90 days, in significant part because no Markman opinion had issued as of the time of the Motion's filing. The Court agrees with Plaintiffs that this portion of the Motion was "premised on the faulty notion that expert discovery cannot proceed without the Court's claim construction[,]" and that in reality, "proceeding with expert discovery without a Markman decision is not uncommon in this District." (D.I. 105 at 2 (citing cases)) Because Defendant could, with diligence, meet the currently-existing Scheduling Order deadlines even in the absence of a Markman ruling, there is not good cause to support its Motion. See Fed. R. Civ. P. 16(b)(4).; (2) In any event, the Court has today issued its Markman opinion, (D.I. 108), and it now has otherwise resolved all pending motions in this case that were before it. The parties, including Defendant, should already be well on their way to preparing this case for trial. They should continue to do so using the current schedule.; and (3) The Court also notes were it to look past the issue of diligence and consider whether Plaintiff would suffer prejudice were the Motion granted, Plaintiff would also have a good case there. (D.I. 105 at 3) As the Court noted back when Defendant moved to stay the case in early 2023, (D.I. 77), the case has been pending since October 2020. And it was stuck in place for many months (through March 2022) while Defendant's motion to dismiss was pending. (Id.) Since the Court was assigned the case in April 2022, it has worked to move it forward towards trial, and that progress should continue.Ordered by Judge Christopher J. Burke on 2/9/2024. (dlb) (Entered: 02/09/2024)
2024-02-09
1
Oral Order
2024-02-09
1
No Actions
NOTICE OF SERVICE of Bausch & Lomb's Supplemental Objections and Responses to Defendant's Interrogatories (Nos. 17-21) filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 02/20/2024)
2024-02-20
1
OBJECTION to 108 Report and Recommendations issued on February 8th 2024 by SBH Holdings LLC. (Attachments: # 1 Certificate of Compliance Certification of Objections, # 2 Certificate of Service Certificate of service)(Brown, Glenn) (Entered: 02/22/2024)
2024-02-22
1
RESPONSE TO OBJECTIONS by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC re 111 Objection to Report and Recommendations . (Fahnestock, Derek) (Entered: 03/07/2024)
2024-03-07
1
MOTION to Strike the Disclosure of Zac Denning and Motion to Strike and in the Alternative to Preclude Certain Invalidity Defenses, and Request for Expedited Consideration - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 03/08/2024)
2024-03-08
1
[SEALED] Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock - re 113 MOTION to Strike the Disclosure of Zac Denning and Motion to Strike and in the Alternative to Preclude Certain Invalidity Defenses, and Request for Expedited Consideration. (Attachments: # 1 Exs. A-I)(Fahnestock, Derek) (Entered: 03/08/2024)
2024-03-08
1
ANSWERING BRIEF in Opposition re 113 MOTION to Strike the Disclosure of Zac Denning and Motion to Strike and in the Alternative to Preclude Certain Invalidity Defenses, and Request for Expedited Consideration filed by SBH Holdings LLC.Reply Brief due date per Local Rules is 3/22/2024. (Attachments: # 1 Exhibit exhibit 1)(Brown, Glenn) (Entered: 03/15/2024)
2024-03-15
1
ANSWERING BRIEF in Opposition re 113 MOTION to Strike the Disclosure of Zac Denning and Motion to Strike and in the Alternative to Preclude Certain Invalidity Defenses, and Request for Expedited Consideration filed by SBH Holdings LLC.Reply Brief due date per Local Rules is 3/22/2024. (Attachments: # 1 Exhibit exhibit 1)(Brown, Glenn) (Entered: 03/15/2024)
2024-03-15
2
STATEMENT re 113 MOTION to Strike the Disclosure of Zac Denning and Motion to Strike and in the Alternative to Preclude Certain Invalidity Defenses, and Request for Expedited Consideration -- Rule 7.1.1 Certification -- by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 03/15/2024)
2024-03-15
1
ORAL ORDER: With regard to the briefing on the pending motion to strike, the Court reminds Defendant that the Scheduling Order sets out rules for how the motion is supposed to be briefed. (D.I. 28 at para. 9) It asks Defendant to follow those rules for any other motions to strike filed in the case in the future. Ordered by Judge Christopher J. Burke on 3/18/2024. (dlb) (Entered: 03/18/2024)
2024-03-18
1
[SEALED] Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding Reply ISO Motion to Strike - re 113 MOTION to Strike the Disclosure of Zac Denning and Motion to Strike and in the Alternative to Preclude Certain Invalidity Defenses, and Request for Expedited Consideration. (Fahnestock, Derek) (Entered: 03/18/2024)
2024-03-18
1
REDACTED VERSION of 114 Letter, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Exs. A-I)(Fahnestock, Derek) (Entered: 03/18/2024)
2024-03-18
1
REDACTED VERSION of 114 Letter, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Exs. A-I)(Fahnestock, Derek) (Entered: 03/18/2024)
2024-03-18
2
Oral Order
2024-03-18
1
No Actions
REDACTED VERSION of 118 Letter, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 03/25/2024)
2024-03-25
1
NOTICE requesting Clerk to remove Daniel H. Kaltman as co-counsel. Reason for request: no longer with the firm. (Fahnestock, Derek) (Entered: 03/26/2024)
2024-03-26
1
NOTICE OF SERVICE of Rebuttal Expert Report of Elizabeth J. Johnson, Ph.D. - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 04/05/2024)
2024-04-05
1
NOTICE OF SERVICE of NOTICE OF SERVICE OF DEFENDANT, SBH HOLDINGS LLC filed by SBH Holdings LLC. (Attachments: # 1 Certificate of Service)(Brown, Glenn) (Entered: 04/05/2024)
2024-04-05
1
ORAL ORDER: The Court has reviewed Plaintiffs' motion to strike Defendant's disclosure of the expert report of Zac Denning pursuant to Fed. R. Civ. P. 26(a)(2)(C) and to strike other of Defendant's invalidity defenses and/or to preclude additional expert testimony ("Motion"), (D.I. 113), and the briefing related thereto, (D.I. 114; D.I. 115; D.I. 118). Having done so, and having taken into account Rule 26(a)(2)(C) and Fed. R. Civ. P. 37(c)(1), the Court GRANTS-IN-PART and DENIES-IN-PART the Motion for the reasons and in the manner that follow: (1) The Court first addresses Plaintiffs' request that it strike Mr. Denning's Feb. 20, 2024 disclosure (the "disclosure"), which was offered under Rule 26(a)(2)(C). (D.I. 114 at 1-3 & ex. A) As to that request, the Court need not address Plaintiffs' initial argument that Mr. Denning does not qualify as the type of expert witness who can proffer such a disclosure under Rule 26(a)(2)(C). (Id. at 1-2) That is because, even assuming Mr. Denning is such a person, his disclosure would have needed to provide a "summary of the facts and opinions to which the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C)(ii). And here, Mr. Denning's two-page disclosure does not do that (or even come close to doing that). The disclosure provides no "facts" at all supporting any opinions; instead, it amounts to a conclusory statement to the effect that Mr. Denning thinks that the asserted claims are invalid for indefiniteness and lack of enablement. (D.I. 114, ex. A) Defendant never argues to the contrary. (D.I. 115; D.I. 118 at 2) Such a disclosure cannot satisfy the requirements of this part of Rule 26, and so this portion of the Motion is GRANTED. See, e.g., Emerson Elec. Co. v. Suzhou Cleva Elec. Appliance Co., Case No. 4:13CV1043SPM, 2015 WL 8770712, at *2 (E.D. Mo. Dec. 15, 2015) (noting that while a Rule 26(a)(2)(C) disclosure need not be as extensive as an expert report under Rule 26(a)(2)(B), it may not simply state the topic that will be discussed at a high level) (citing cases); see also Ford v. State Farm Fire & Cas. Co., Civil Action No. 22-cv-02051-REB-SBP, 2023 WL 8831332, at *2 (D. Colo. Dec. 21, 2023) (same).; (2) And to the extent that Defendant argues that the motion was wrongly brought as a motion to strike on this ground, (D.I. 115 at 7-8), the Court disagrees. Parties may seek to strike all or portions of an expert's report under Rules 26 and 37, and if the motion is well taken a Court may make a ruling that "strikes" those portions of the offending report or disclosure (i.e., that orders that the offending party "is not allowed to use that information" later in the case). Fed. R. Civ. P. 37(c)(1); see also GlaxoSmithKline LLC v. Glenmark Pharms. Inc., Civil Action No. 14-877-LPS-CJB, Civil Action No. 14-878-LPS-CJB, 2017 WL 11685418, at *5 (D. Del. Jan. 20, 2017).; (3) With regard to Plaintiffs' request that the Court strike Defendant's invalidity defenses for which Defendant has not provided any expert testimony, (D.I. 114 at 3), that portion of the Motion is DENIED. Much of Plaintiffs' argument here is a complaint about the substance of Defendant's prior contentions relating to invalidity issues. (Id.; D.I. 118 at 2) But Plaintiffs never moved to strike those contentions as deficient, nor are they doing so now. And the Court has no idea at this point about what evidence Defendant will muster in an attempt to make its required showing on invalidity--nor whether such evidence will be sufficient to do so. If Plaintiffs think it is clear that Defendant cannot meet the required bar, then they can file a summary judgment motion on the subject at the appropriate time--but such motions will be adjudicated by the District Judge, not the undersigned. (D.I. 115 at 8-9); and (4) To the extent Plaintiffs seek a ruling that Defendant may not offer any further expert testimony on its invalidity defenses going forward, (D.I. 114 at 3; D.I. 118 at 2), no request to offer such further testimony has yet been made, and so any ruling on that topic would be premature. Ordered by Judge Christopher J. Burke on 4/18/2024. (dlb) (Entered: 04/18/2024)
2024-04-18
1
Oral Order
2024-04-18
1
No Actions
NOTICE OF SERVICE of (1) Reply Expert Report of Elizabeth J. Johnson, Ph.D., (2) Reply Expert Report of Michael E. Tate and (3) Expert Report of Sherry M. Knowles - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 04/29/2024)
2024-04-29
1
NOTICE of Notice of Service by SBH Holdings LLC (Brown, Glenn) (Entered: 04/30/2024)
2024-04-30
1
OBJECTIONS by SBH Holdings LLC to Magistrate Judge Burke's Oral Order D.I. 124. (Brown, Glenn) (Entered: 05/01/2024)
2024-05-01
1
RESPONSE TO OBJECTIONS by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC re 127 Objections . (Fahnestock, Derek) (Entered: 05/15/2024)
2024-05-15
1
MOTION for Pro Hac Vice Appearance of Attorney Jerrit Yang - filed by Bausch & Lomb Incorporated. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 05/23/2024)
2024-05-23
1
Pro Hac Vice Fee - Credit Card Payment received for Jerrit Yang. ( re 129 MOTION for Pro Hac Vice Appearance of Attorney Jerrit Yang )( Payment of $ 50, receipt number ADEDC-4414298).(Fahnestock, Derek) (Entered: 05/23/2024)
2024-05-23
1
-District Court Pro Hac Vice Fee - 01 Attorney Credit Card Payment
2024-05-23
1
No Actions
NOTICE to Take Deposition of Matthew Kaser on June 4, 2024 filed by Bausch & Lomb Incorporated.(Fahnestock, Derek) (Entered: 05/24/2024)
2024-05-24
1
NOTICE to Take Deposition of Brian Buss on June 5, 2024 filed by Bausch & Lomb Incorporated.(Fahnestock, Derek) (Entered: 05/24/2024)
2024-05-24
1
SO ORDERED, D.I. 129 MOTION for Pro Hac Vice Appearance of Attorney Jerrit Yang filed by Bausch & Lomb Incorporated. Ordered by Judge Christopher J. Burke on 05/24/2024. (smg)
2024-05-24
1
No Actions
SO ORDERED
2024-05-24
1
No Actions
MOTION to Strike the Reply Report of Zac Denning - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 05/29/2024)
2024-05-29
1
Strike
2024-05-29
1
[SEALED] Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock - re 133 MOTION to Strike the Reply Report of Zac Denning. (Attachments: # 1 Ex. 1)(Fahnestock, Derek) (Entered: 05/29/2024)
2024-05-29
1
Letter
2024-05-29
1
Pro Hac Vice Attorney Monica Chou, Jerrit Yang, Steven C. Kline, and Scott K. Reed for Bausch & Lomb Incorporated added for electronic noticing. Pursuant to Local Rule 83.5 (d). Delaware counsel shall be the registered users of CM/ECF and shall be required to file all papers. (vfm)
2024-05-29
1
No Actions
CORRECTING ENTRY: Previous motion and letter brief has been deleted per request of counsel to be refiled with proper formatting and additional information. (smg)
2024-05-29
1
No Actions
- CORRECTING ENTRY
2024-05-29
1
No Actions
Add Attorneys - PHV only
2024-05-29
1
No Actions
Letter to The Honorable Christopher J. Burke from Attorney for defendant SBH HOLDINGS LLC regarding Opposition to ECF #133, and #134 - re 133 MOTION to Strike the Reply Report of Zac Denning, 134 Letter. (Attachments: # 1 Certificate of Service)(Brown, Glenn) (Entered: 06/05/2024)
2024-06-05
1
REDACTED VERSION of 134 Letter by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Exhibit 1)(Fahnestock, Derek) (Entered: 06/10/2024)
2024-06-10
1
[SEALED] Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding Reply in Support - re 133 MOTION to Strike the Reply Report of Zac Denning. (Attachments: # 1 Johnson Rebuttal Expert Report)(Fahnestock, Derek) (Entered: 06/10/2024)
2024-06-10
1
Deficiency re Redacted Documents
2024-06-10
1
No Actions
REDACTION NOTICE: In accordance with section G of the Administrative Procedures Governing Filing and Service by Electronic Means, redacted versions of sealed documents shall be filed electronically within 7 days of the filing of the sealed document. The records of this case do not reflect the filing of a redacted version of DI # 134 . (smg)
2024-06-10
1
No Actions
ORAL ORDER Setting Videoconference: The Court hereby ORDERS as follows with respect to Plaintiffs’ Motion to Strike the Reply Report of Zac Denning (the "Motion"), (D.I. 133 ): (1) A videoconference using the Microsoft Teams platform is set for July 1, 2024 at 4:00 PM before Judge Christopher J. Burke.; (2) By no later than June 24, 2024, the parties shall send an e-mail to the Court's Courtroom Deputy, Ms. Grimes, indicating the names and e-mail addresses of all individuals who will participate in the videoconference.; and (3) The Court may choose to resolve the Motion prior to the videoconference and will, in that event, cancel the videoconference (however, if any party advises the Court in advance that a newer attorney will argue the Motion, see Standing Order Regarding Courtroom Opportunities for Newer Attorneys, https://www.ded.uscourts.gov/sites/ded/files/StandingOrder2017.pdf, then the Court will go forward with the conference). Ordered by Judge Christopher J. Burke on 06/11/2024. (smg) (Entered: 06/11/2024)
2024-06-11
1
Oral Order AND ~Util - Set Hearings
2024-06-11
1
No Actions
REDACTED VERSION of 137 Letter, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Johnson Rebuttal Expert Report)(Fahnestock, Derek) (Entered: 06/17/2024)
2024-06-17
1
NOTICE OF SERVICE of Plaintiffs' Supplemental Rule 26(a)(1) Initial Disclosures - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.(Fahnestock, Derek) (Entered: 06/20/2024)
2024-06-20
1
ORAL ORDER: The Court, having reviewed Plaintiffs’ motion to strike Defendant’s Reply Report of Zac Denning (“Motion”), (D.I. 133 ), and the briefing related thereto, (D.I. 134 ;D.I. 135 ; D.I. 137 ), hereby ORDERS that the Motion is GRANTED for the reasons that follow: (1) As an initial matter, the Court rejects Defendant’s argument that the Motion is a Daubert motion that is not referred for resolution to the Court. (D.I. 135 at 2) The Motion is a motion to strike expert testimony, properly brought under Fed. R. Civ. P. 26 & 37, (see D.I. 124 ), and such motions have been referred to the Court by the District Judge, (D.I. 40 ).; (2) The Court also rejects Defendant’s assertion that the Motion should be denied because Plaintiffs failed to file the statement required by D. Del. LR 7.1.1, (D.I. 135 at 2), in that this assertion is simply incorrect (as Plaintiffs did file the statement), (D.I. 133 at 3; D.I. 137 at 1).; (3) From there, the most efficient way to explain why the Motion should be granted is because (a) Mr. Denning’s Reply Report violates the Scheduling Order (“SO”), and (b) there can be no good cause to countenance that violation. (D.I. 134 at 1; D.I. 137 at 1) Paragraph 7(f)(i) of the SO is clearly meant to permit an expert to file a reply expert report only if an expert for that side has previously properly submitted an opening/initial expert report or disclosure on the subject at issue. This is indicated when the SO states that reply expert reports may be served by “the party with the initial burden of proof”; this, in turn, is a reference back to the earlier portion of paragraph 7(f)(i), which states that “[f]or the party who has the initial burden of proof on the subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due” on a date certain. (D.I. 28 at para. 7(f)(i)) Read as a whole, paragraph 7(f)(i) is indicating that if a party with the initial burden of proof does not properly serve an opening expert report or disclosure on a particular subject, then there will be no basis on which an expert for that party may file a reply report as to that same subject matter—because the expert report process as to that subject matter would never have been properly set in motion in the first place. In this matter, the Court has already ruled that Mr. Denning’s opening initial expert disclosure was improper, and therefore the Court struck the disclosure on this basis. (D.I. 124 ) Thus, with no valid initial expert report/disclosure having been served by Mr. Denning or any other expert for Defendant as to the subject matter at issue in Mr. Denning’s reply report, the SO does not permit Mr. Denning to file a reply report. (For similar reasons, Plaintiffs’ prophylactic submission of a rebuttal expert report on these topics also becomes a non-event.). As such, Mr. Denning’s reply report has been submitted in violation of the SO. And there could not be good cause to permit such an SO violation under Fed. R. Civ. P. 16(b)(4), because Defendant could have, with diligence, submitted a proper opening expert disclosure by Feb. 20, 2024. It simply did not do so. (D.I. 124 ); and (4) The July 1, 2024 videoconference regarding the Motion is CANCELED. Signed by Judge Christopher J. Burke on 07/01/2024. (smg) (Entered: 07/01/2024)
2024-07-01
1
Letter to The Honorable Gregory B. Williams from Derek J. Fahnestock regarding request to schedule the case for trial. (Fahnestock, Derek) (Main Document 142 replaced on 7/2/2024) (lnb). (Entered: 07/01/2024)
2024-07-01
1
1 - Terminate Hearings AND Oral Order AND ~Util - Terminate Motions
2024-07-01
1
No Actions
ORAL ORDER: Pursuant to 28 U.S.C. § 636(b) and any further Order of the Court, IT IS HEREBY ORDERED that the referral of this case to Magistrate Judge Christopher J. Burke is expanded for him to hear and resolve all pre-trial matters and motions, up to and including summary judgment motions, motions to strike, Daubert motions, and any other pending motions, subject to 28 U.S.C. § 636(b). With respect to motions for summary judgment or any other motion excepted in 28 U.S.C. § 636(b)(1)(A), Magistrate Judge Burke shall submit and file a Report and Recommendation including proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and 28 U.S.C. § 636(b)(1)(C). IT IS ALSO HEREBY ORDERED that, by no later than ten (10) days from today's date, the parties shall meet and confer and file a letter of no more than one page, single-spaced, indicating whether they jointly agree to consent to Magistrate Judge Burke to conduct all proceedings in this case, including and through final pre-trial conference, trial and post-trial motions. Ordered by Judge Gregory B. Williams on 7/2/2024. (lnb) (Entered: 07/02/2024)
2024-07-02
1
Letter to Judge Williams from SBH Holdings LLC regarding Defendant's opposition to Request for Trial Setting - re 142 Letter. (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) (Entered: 07/02/2024)
2024-07-02
1
Order
2024-07-02
1
No Actions
- CORRECTING ENTRY
2024-07-02
1
No Actions
CORRECTING ENTRY: Corrected Document added to D.I. 142 per request of counsel. (lnb)
2024-07-02
1
No Actions
Letter to The Honorable Gregory B. Williams from Derek J. Fahnestock regarding the parties' response to the Court's July 2, 2024 Oral Order - re 143 Order,,,,. (Fahnestock, Derek) (Entered: 07/12/2024)
2024-07-12
1
OBJECTIONS by SBH Holdings LLC to 141 Oral Order,,,,,,,,,,,,,,, Terminate Motions,,,,,,,,,,,,,,, Terminate Hearings,,,,,,,,,,,,,, . (Brown, Glenn) (Entered: 07/12/2024)
2024-07-12
1
[SEALED] RESPONSE TO OBJECTIONS by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC re 146 Objections . (Fahnestock, Derek) Modified on 7/26/2024 (lnb). (Entered: 07/26/2024)
2024-07-26
1
- CORRECTING ENTRY
2024-07-26
1
No Actions
CORRECTING ENTRY: D.I. NO. 147 Was Placed Under Seal per request of Counsel. (lnb)
2024-07-26
1
No Actions
REDACTED VERSION of 147 Response to Objections by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 08/02/2024)
2024-08-02
1
MOTION to Exclude Testimony of Michael E. Tate Regarding Lost Profits and to Exclude Testimony of Dr. Johnson Regarding Opinions Set Forth in Her Report Paragraph - filed by SBH Holdings LLC. (Attachments: # 1 Certificate of Service)Motions referred to Christopher J. Burke.(Brown, Glenn) Modified on 9/4/2024 (smg). (Entered: 09/03/2024)
2024-09-03
1
MOTION for Summary Judgment - filed by SBH Holdings LLC. (Attachments: # 1 Certificate of Service, # 2 Affidavit, # 3 Affidavit, # 4 Exhibit)Motions referred to Christopher J. Burke.(Brown, Glenn) (Entered: 09/03/2024)
2024-09-03
1
OPENING BRIEF in Support re 150 MOTION for Summary Judgment filed by SBH Holdings LLC.Answering Brief/Response due date per Local Rules is 9/17/2024. (Attachments: # 1 Certificate of Service)(Brown, Glenn) (Entered: 09/03/2024)
2024-09-03
1
STATEMENT CONCISE STATEMENT OF MATERIAL FACTS by SBH Holdings LLC. (Attachments: # 1 Certificate of Service)(Brown, Glenn) (Entered: 09/03/2024)
2024-09-03
1
MOTION for Summary Judgment No. 1 of No Invalidity Under 35 U.S.C. § 103 - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 09/03/2024)
2024-09-03
1
MOTION for Summary Judgment No. 2 of No Invalidity for Double Patenting - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) Modified on 3/27/2025 (sam). (Entered: 09/03/2024)
2024-09-03
1
MOTION for Summary Judgment No. 3 of No Invalidity Under 35 U.S.C. § 112 and Broadening During Reexamination - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 09/03/2024)
2024-09-03
1
MOTION for Summary Judgment No. 4 of No Invalidity or Unenforceability for SBH's Other Unsupported Defenses - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) Modified on 3/27/2025 (sam). (Entered: 09/03/2024)
2024-09-03
1
MOTION for Summary Judgment No. 5 of Infringement - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) Modified on 3/27/2025 (sam). (Entered: 09/03/2024)
2024-09-03
1
MOTION to Preclude Testimony of Dr. Matthew Kaser for Lack of Qualifications and Applying Incorrect Law - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 09/03/2024)
2024-09-03
1
MOTION to Preclude Testimony of Mr. Brian Buss in Part - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 09/03/2024)
2024-09-03
1
[SEALED] STATEMENT re 153 MOTION for Summary Judgment No. 1 of No Invalidity Under 35 U.S.C. § 103 by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 09/03/2024)
2024-09-03
1
[SEALED] STATEMENT re 154 MOTION for Summary Judgment No. 2 of No Invalidity for Double Patenting by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 09/03/2024)
2024-09-03
1
[SEALED] STATEMENT re 155 MOTION for Summary Judgment No. 3 of No Invalidity Under 35 U.S.C. § 112 and Broadening During Reexamination by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 09/03/2024)
2024-09-03
1
STATEMENT re 156 MOTION for Summary Judgment No. 4 of No Invalidity or Unenforceability for SBH's Other Unsupported Defenses by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 09/03/2024)
2024-09-03
1
[SEALED] STATEMENT re 157 MOTION for Summary Judgment No. 5 of Infringement by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 09/03/2024)
2024-09-03
1
[SEALED] OPENING BRIEF in Support re 158 MOTION to Preclude Testimony of Dr. Matthew Kaser for Lack of Qualifications and Applying Incorrect Law, 157 MOTION for Summary Judgment No. 5 of Infringement, 156 MOTION for Summary Judgment No. 4 of No Invalidity or Unenforceability for SBH's Other Unsupported Defenses, 153 MOTION for Summary Judgment No. 1 of No Invalidity Under 35 U.S.C. § 103, 154 MOTION for Summary Judgment No. 2 of No Invalidity for Double Patenting, 155 MOTION for Summary Judgment No. 3 of No Invalidity Under 35 U.S.C. § 112 and Broadening During Reexamination, 159 MOTION to Preclude Testimony of Mr. Brian Buss in Part filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.Answering Brief/Response due date per Local Rules is 9/17/2024. (Fahnestock, Derek) (Entered: 09/03/2024)
2024-09-03
1
[SEALED] DECLARATION re 158 MOTION to Preclude Testimony of Dr. Matthew Kaser for Lack of Qualifications and Applying Incorrect Law, 157 MOTION for Summary Judgment No. 5 of Infringement, 156 MOTION for Summary Judgment No. 4 of No Invalidity or Unenforceability for SBH's Other Unsupported Defenses, 153 MOTION for Summary Judgment No. 1 of No Invalidity Under 35 U.S.C. § 103, 154 MOTION for Summary Judgment No. 2 of No Invalidity for Double Patenting, 155 MOTION for Summary Judgment No. 3 of No Invalidity Under 35 U.S.C. § 112 and Broadening During Reexamination, 159 MOTION to Preclude Testimony of Mr. Brian Buss in Part (Declaration of Monica Chou, Esq. - Volume 1 of 2) - by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Ex. 1-26)(Fahnestock, Derek) (Entered: 09/03/2024)
2024-09-03
1
[SEALED] DECLARATION re 158 MOTION to Preclude Testimony of Dr. Matthew Kaser for Lack of Qualifications and Applying Incorrect Law, 157 MOTION for Summary Judgment No. 5 of Infringement, 156 MOTION for Summary Judgment No. 4 of No Invalidity or Unenforceability for SBH's Other Unsupported Defenses, 153 MOTION for Summary Judgment No. 1 of No Invalidity Under 35 U.S.C. § 103, 154 MOTION for Summary Judgment No. 2 of No Invalidity for Double Patenting, 155 MOTION for Summary Judgment No. 3 of No Invalidity Under 35 U.S.C. § 112 and Broadening During Reexamination, 159 MOTION to Preclude Testimony of Mr. Brian Buss in Part (Declaration o f Monica Chou, Esq. - Volume 2 of 2) - by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Ex. 27-34)(Fahnestock, Derek) (Entered: 09/03/2024)
2024-09-03
1
PROPOSED ORDER Defendants Motion for Summary Judgment is GRANTED re 151 Opening Brief in Support, 150 MOTION for Summary Judgment, 152 Statement by SBH Holdings LLC. (Brown, Glenn) (Entered: 09/03/2024)
2024-09-03
1
PROPOSED ORDER Defendants Motion to Exclude Testimony of Michael E. Tate Regarding Lost Profits and o Exclude Testimony by Dr. Johnson Re Opinions Set Forth In Her Report Paragraph 51 is GRANTED re 149 MOTION in Limine TO EXCLUDE TESTIMONY OF MICHAEL E. TATE RE LOST PROFITS AND TO EXCLUDE TESTIMONY OF DR. JOHNSON RE OPINIONS SET FORTH IN HER REPORT PARAGRAPH 51 by SBH Holdings LLC. (Brown, Glenn) (Entered: 09/03/2024)
2024-09-03
1
ORAL ORDER: For the Court's administrative purposes, the Court hereby ORDERS that by no later than September 9, 2024, Defendant shall file individual one-page motions for each motion/ground that it raises in its motion for summary judgment. (D.I. 150 ) Ordered by Judge Christopher J. Burke on 9/4/2024. (smg) (Entered: 09/04/2024)
2024-09-04
1
Oral Order
2024-09-04
1
No Actions
MOTION for Summary Judgment #1 - filed by SBH Holdings LLC. (Brown, Glenn) Modified on 9/10/2024 (smg). Modified on 3/27/2025 (sam). (Entered: 09/06/2024)
2024-09-06
1
MOTION for Summary Judgment #9 - filed by SBH Holdings LLC. (Brown, Glenn) Modified on 3/27/2025 (sam). (Entered: 09/06/2024)
2024-09-06
1
MOTION for Summary Judgment #8 - filed by SBH Holdings LLC. (Brown, Glenn) Modified on 3/27/2025 (sam). (Entered: 09/06/2024)
2024-09-06
1
MOTION for Summary Judgment #4 - filed by SBH Holdings LLC. (Brown, Glenn) Modified on 3/27/2025 (sam). (Entered: 09/06/2024)
2024-09-06
1
MOTION for Summary Judgment #5 - filed by SBH Holdings LLC. (Brown, Glenn) Modified on 3/27/2025 (sam). (Entered: 09/06/2024)
2024-09-06
1
MOTION for Summary Judgment #6 - filed by SBH Holdings LLC. (Brown, Glenn) Modified on 3/27/2025 (sam). (Entered: 09/06/2024)
2024-09-06
1
MOTION for Summary Judgment #7 - filed by SBH Holdings LLC. (Brown, Glenn) Modified on 3/27/2025 (sam). (Entered: 09/06/2024)
2024-09-06
1
MOTION for Summary Judgment #3 - filed by SBH Holdings LLC. Motions referred to Christopher J. Burke.(Brown, Glenn) (Entered: 09/06/2024)
2024-09-06
1
MOTION for Summary Judgment #2 - filed by SBH Holdings LLC. (Brown, Glenn) Modified on 3/27/2025 (sam). (Entered: 09/06/2024)
2024-09-06
1
REDACTED VERSION of 160 Statement by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 09/10/2024)
2024-09-10
1
REDACTED VERSION of 161 Statement by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 09/10/2024)
2024-09-10
1
REDACTED VERSION of 162 Statement by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 09/10/2024)
2024-09-10
1
REDACTED VERSION of 164 Statement by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 09/10/2024)
2024-09-10
1
REDACTED VERSION of 165 Opening Brief in Support,,, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 09/10/2024)
2024-09-10
1
REDACTED VERSION of 166 Declaration,,, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Exs. 1-26)(Fahnestock, Derek) (Entered: 09/10/2024)
2024-09-10
1
REDACTED VERSION of 167 Declaration,,, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Exs. 27-34)(Fahnestock, Derek) (Entered: 09/10/2024)
2024-09-10
1
NOTICE requesting Clerk to remove Jerrit Yang as co-counsel. Reason for request: no longer with the firm. (Fahnestock, Derek) (Entered: 09/18/2024)
2024-09-18
1
STIPULATION TO EXTEND TIME (1) for answering briefs in opposition to dispositive and Daubert motions, responses to concise statements of fact, and opposing concise statements of fact; and (2) for reply briefs in support of dispositive and Daubert motions and responses to opposing concise statements of fact to October 17, 2024 and November 7, 2024, respectively - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 09/19/2024)
2024-09-19
1
SO ORDERED, D.I. 188 STIPULATION TO EXTEND TIME (1) for answering briefs in opposition to dispositive and Daubert motions, responses to concise statements of fact, and opposing concise statements of fact; and (2) for reply briefs in support of dispositive and Daubert moti filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. Ordered by Judge Christopher J. Burke on 9/19/2024. (smg)
2024-09-19
1
No Actions
SO ORDERED
2024-09-19
1
No Actions
MEMORANDUM ORDER: It is HEREBY ORDERED 1. The Report and Recommendation dated December 29, 2023, D.I. 102, is ADOPTED, and Defendant's Motion for Judgment on the Pleadings, D.I. 63, is DENIED. 2. The R&R dated February 8, 2024, D.I. 108, is ADOPTED, and Defendant's objections, D.I. 111, are OVERRULED. 3. The Oral Order dated April 18, 2024, D.I. 124, is ADOPTED, and Defendant's objections, D.I. 127, are OVERRULED. 4. The Oral Order dated July 1, 2024, D.I. 141, is ADOPTED, and Defendant's objections, D.I. 146, are OVERRULED. Signed by Judge Gregory B. Williams on 9/27/2024. (lnb) (Entered: 09/27/2024)
2024-09-27
1
ORAL ORDER: Having reviewed the parties' respective letters (D.I. 142 and 144) concerning the scheduling of trial in this action, IT IS HEREBY ORDERED that the final pretrial conference is scheduled for April 8, 2025, at 3:00 pm, and a five (5) day jury trial is scheduled to begin on April 14, 2025, at 9:30 am. All subsequent trial days shall begin with the jury at 9:30 am. The trial will be a timed trial. Each side shall be allocated ten (10) hours to present their case. IT IS FURTHER ORDERED that counsel for the parties shall meet and confer and, by no later than October 17, 2024, email to chambers at gbw_civil@ded.uscourts.gov a Microsoft Word version of the draft proposed TRIAL SCHEDULING ORDER setting forth the dates and times provided herein for the final pretrial conference and trial and also including the applicable deadlines for the joint proposed pretrial order, joint proposed voir dire, and joint proposed final jury instructions and the deadlines for the parties respective submissions leading to those documents. ORDERED by Judge Gregory B. Williams on 10/3/24. (jaa) (Entered: 10/03/2024)
2024-10-03
1
Order AND ~Util - Set Hearings
2024-10-03
1
No Actions
[SEALED] ANSWERING BRIEF in Opposition re 149 MOTION for and to Exclude Testimony of Michael E. Tate Regarding Lost Profits and to Exclude Testimony of Dr. Johnson Regarding Opinions Set Forth in Her Report Paragraph - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.Reply Brief due date per Local Rules is 10/24/2024. (Fahnestock, Derek) (Entered: 10/17/2024)
2024-10-17
1
[SEALED] ANSWERING BRIEF in Opposition re 175 MOTION for Summary Judgment #5, 173 MOTION for Summary Judgment #8, 178 MOTION for Summary Judgment #3, 177 MOTION for Summary Judgment #7, 174 MOTION for Summary Judgment #4, 172 MOTION for Summary Judgment #9, 171 MOTION for Summary Judgment @1, 176 MOTION for Summary Judgment #6, 179 MOTION for Summary Judgment #2 - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC.Reply Brief due date per Local Rules is 10/24/2024. (Fahnestock, Derek) (Entered: 10/17/2024)
2024-10-17
1
[SEALED] STATEMENT re 152 Statement (Plaintiffs' Response to Defendant's Concise Statement of Material Facts) - by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 10/17/2024)
2024-10-17
1
[SEALED] STATEMENT (Plaintiffs' Concise Statement of Material Facts to Which There is a Genuine Issue to be Tried) - by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 10/17/2024)
2024-10-17
1
[SEALED] DECLARATION re 191 Answering Brief in Opposition, 192 Answering Brief in Opposition,, (Declaration of Monica Chou) - by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Exs. 1-12)(Fahnestock, Derek) (Entered: 10/17/2024)
2024-10-17
1
MOTION to Strike Defendant's Disclosure-Dedication Argument - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 10/17/2024)
2024-10-17
1
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock - re 196 MOTION to Strike Defendant's Disclosure-Dedication Argument. (Attachments: # 1 Ex. A, # 2 Ex. B, # 3 Ex. C)(Fahnestock, Derek) (Entered: 10/17/2024)
2024-10-17
1
ANSWERING BRIEF in Opposition re 153 MOTION for Summary Judgment No. 1 of No Invalidity Under 35 U.S.C. § 103 filed by SBH Holdings LLC.Reply Brief due date per Local Rules is 10/24/2024. (Attachments: # 1 Certificate of Service nos motion 1)(Brown, Glenn) (Entered: 10/17/2024)
2024-10-17
1
ANSWERING BRIEF in Opposition re 154 MOTION for Summary Judgment No. 2 of No Invalidity for Double Patenting filed by SBH Holdings LLC.Reply Brief due date per Local Rules is 10/24/2024. (Attachments: # 1 Certificate of Service certificate of service)(Brown, Glenn) (Entered: 10/17/2024)
2024-10-17
1
ANSWERING BRIEF in Opposition re 155 MOTION for Summary Judgment No. 3 of No Invalidity Under 35 U.S.C. § 112 and Broadening During Reexamination filed by SBH Holdings LLC.Reply Brief due date per Local Rules is 10/24/2024. (Attachments: # 1 Certificate of Service notice of service)(Brown, Glenn) (Entered: 10/17/2024)
2024-10-17
1
ANSWERING BRIEF in Opposition re 156 MOTION for Summary Judgment No. 4 of No Invalidity or Unenforceability for SBH's Other Unsupported Defenses filed by SBH Holdings LLC.Reply Brief due date per Local Rules is 10/24/2024. (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) (Entered: 10/17/2024)
2024-10-17
1
ANSWERING BRIEF in Opposition re 157 MOTION for Summary Judgment No. 5 of Infringement filed by SBH Holdings LLC.Reply Brief due date per Local Rules is 10/24/2024. (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) (Entered: 10/17/2024)
2024-10-17
1
[SEALED] DECLARATION Frear Stephen Schmid by SBH Holdings LLC. (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) (Entered: 10/17/2024)
2024-10-17
1
DECLARATION Dr. Matthew Kaser by SBH Holdings LLC. (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) (Entered: 10/17/2024)
2024-10-17
1
DECLARATION Zac Denning Equitable Estoppel by SBH Holdings LLC. (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) (Entered: 10/17/2024)
2024-10-17
1
DECLARATION re 157 MOTION for Summary Judgment No. 5 of Infringement Zac Denning RE Lutein by SBH Holdings LLC. (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) (Entered: 10/17/2024)
2024-10-17
1
[SEALED] ANSWERING BRIEF in Opposition re 157 MOTION for Summary Judgment No. 5 of Infringement filed by SBH Holdings LLC.Reply Brief due date per Local Rules is 10/24/2024. (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) (Entered: 10/17/2024)
2024-10-17
1
MOTION for Pro Hac Vice Appearance of Attorney Philip Dutko - filed by Bausch & Lomb Incorporated. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 10/18/2024)
2024-10-18
1
Pro Hac Vice Fee - Credit Card Payment received for Philip Dutko. ( re 208 MOTION for Pro Hac Vice Appearance of Attorney Philip Dutko )( Payment of $ 50, receipt number ADEDC-4527120).(Fahnestock, Derek) (Entered: 10/18/2024)
2024-10-18
1
SO ORDERED, D.I. 208 MOTION for Pro Hac Vice Appearance of Attorney Philip Dutko filed by Bausch & Lomb Incorporated. Ordered by Judge Christopher J. Burke on 10/18/2024. (smg)
2024-10-18
1
No Actions
-District Court Pro Hac Vice Fee - 01 Attorney Credit Card Payment
2024-10-18
1
No Actions
SO ORDERED
2024-10-18
1
No Actions
TRIAL SCHEDULING ORDER re 190 . Signed by Judge Gregory B. Williams on 10/21/2024. (lnb) (Entered: 10/21/2024)
2024-10-21
1
REDACTED VERSION of 207 Answering Brief in Opposition, 202 Answering Brief in Opposition, by SBH Holdings LLC. (Brown, Glenn) (Entered: 10/24/2024)
2024-10-24
1
REDACTED VERSION of 203 Declaration /frear Stephen Schmid by SBH Holdings LLC. (Brown, Glenn) (Entered: 10/24/2024)
2024-10-24
1
REDACTED VERSION of 191 Answering Brief in Opposition, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 10/24/2024)
2024-10-24
1
REDACTED VERSION of 192 Answering Brief in Opposition,, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 10/24/2024)
2024-10-24
1
REDACTED VERSION of 193 Statement by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 10/24/2024)
2024-10-24
1
REDACTED VERSION of 194 Statement by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 10/24/2024)
2024-10-24
1
REDACTED VERSION of 195 Declaration, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Exhibits 1-12)(Fahnestock, Derek) (Entered: 10/24/2024)
2024-10-24
1
REDACTED VERSION of 195 Declaration, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Exhibits 1-12)(Fahnestock, Derek) (Entered: 10/24/2024)
2024-10-24
2
ANSWERING BRIEF in Opposition re 196 MOTION to Strike Defendant's Disclosure-Dedication Argument filed by SBH Holdings LLC.Reply Brief due date per Local Rules is 10/31/2024. (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) (Entered: 10/24/2024)
2024-10-24
1
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding request to schedule discovery teleconference. (Fahnestock, Derek) (Entered: 10/25/2024)
2024-10-25
1
Letter to The Honorable Christopher J. Burke from Glenn A. Brown, DMD, Esquire regarding DISCOVERY CONFERENCE - re 219 Letter. (Brown, Glenn) (Entered: 10/25/2024)
2024-10-25
1
ORAL ORDER: The Court has reviewed Plaintiffs’ October 24, 2024 letter requesting a discovery dispute teleconference regarding one discovery dispute. (D.I. 219 ) It hereby ORDERS as follows with regard to this dispute: (1) By November 1, 2024, any party seeking relief shall file a letter, not to exceed two (2) single-spaced pages, in no less than 12-point font, outlining the issues in dispute and its position on those issues.; (2) By November 7, 2024, any party opposing the application for relief shall file a letter, not to exceed two (2) single-spaced pages, in no less than 12-point font, outlining that party's reasons for its opposition.; (3) By November 14, 2024, the party seeking relief shall file a reply letter brief, not to exceed one (1) single-spaced page, in no less than 12-point font.; (4) By November 14, 2024, the moving party shall file a Motion To Resolve Discovery Dispute.; (5) The parties should also consult and follow Judge Burke's "Guidelines for Discovery Disputes," which is found in the "Guidelines" tab on Judge Burke's portion of the District Court's website.; (6) The Court will plan to resolve the dispute on the papers, unless: (a) it determines after reviewing the briefing that oral argument is needed; or (b) any party advises the Court in advance that, were argument to be set, a newer attorney will argue the dispute, see Standing Order Regarding Courtroom Opportunities for Newer Attorneys, https://www.ded.uscourts.gov/sites/ded/files/StandingOrder2017.pdf. If either of those circumstances, occurs, then the Court will schedule oral argument on the dispute in the future. Ordered by Judge Christopher J. Burke on 10/28/2024. (smg) (Entered: 10/28/2024)
2024-10-28
1
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding Reply in Support of Motion to Strike Disclosure-Dedication Theory - re 218 Answering Brief in Opposition,. (Attachments: # 1 Ex. 1)(Fahnestock, Derek) (Entered: 10/28/2024)
2024-10-28
1
Oral Order
2024-10-28
1
No Actions
ORAL ORDER: The Court, having reviewed Plaintiffs’ Motion to Strike Defendant’s Disclosure-Dedication Argument (“Motion”), (D.I. 196 ), hereby ORDERS that the Court will plan to resolve the Motion on the papers, unless: (a) it determines after reviewing the briefing that oral argument is needed; or (b) any party advises the Court in advance that, were argument to be set, a newer attorney will argue the Motion, see Standing Order Regarding Courtroom Opportunities for Newer Attorneys, https://www.ded.uscourts.gov/sites/ded/files/StandingOrder2017.pdf. If either of those circumstances occurs, then the Court will schedule oral argument on the Motion in the future. Ordered by Judge Christopher J. Burke on 10/29/2024. (smg) (Entered: 10/29/2024)
2024-10-29
1
Oral Order
2024-10-29
1
No Actions
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding Motion to Compel Production of Updated Damages Information. (Attachments: # 1 Proposed Order, # 2 Exhibits 1-2)(Fahnestock, Derek) (Entered: 11/01/2024)
2024-11-01
1
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding Motion to Compel Production of Updated Damages Information. (Attachments: # 1 Proposed Order, # 2 Exhibits 1-2)(Fahnestock, Derek) (Entered: 11/01/2024)
2024-11-01
2
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding Motion to Compel Production of Updated Damages Information. (Attachments: # 1 Proposed Order, # 2 Exhibits 1-2)(Fahnestock, Derek) (Entered: 11/01/2024)
2024-11-01
2
Letter to Judge Burke from SBH Holdings LLC regarding Opposion to plaintiff's - re 224 Letter, 220 Letter. (Brown, Glenn) (Entered: 11/07/2024)
2024-11-07
1
REPLY BRIEF re 175 MOTION for Summary Judgment #5, 173 MOTION for Summary Judgment #8, 178 MOTION for Summary Judgment #3, 177 MOTION for Summary Judgment #7, 174 MOTION for Summary Judgment #4, 172 MOTION for Summary Judgment #9, 171 MOTION for Summary Judgment @1, 176 MOTION for Summary Judgment #6, 179 MOTION for Summary Judgment #2 filed by SBH Holdings LLC. (Brown, Glenn) (Entered: 11/07/2024)
2024-11-07
1
[SEALED] REPLY BRIEF re 158 MOTION to Preclude Testimony of Dr. Matthew Kaser for Lack of Qualifications and Applying Incorrect Law, 157 MOTION for Summary Judgment No. 5 of Infringement, 156 MOTION for Summary Judgment No. 4 of No Invalidity or Unenforceability for SBH's Other Unsupported Defenses, 153 MOTION for Summary Judgment No. 1 of No Invalidity Under 35 U.S.C. § 103, 154 MOTION for Summary Judgment No. 2 of No Invalidity for Double Patenting, 155 MOTION for Summary Judgment No. 3 of No Invalidity Under 35 U.S.C. § 112 and Broadening During Reexamination, 159 MOTION to Preclude Testimony of Mr. Brian Buss in Part filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 11/07/2024)
2024-11-07
1
[SEALED] DECLARATION re 227 Reply Brief,,, --Declaration of Monica Chou-- by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Exhibits 1-8)(Fahnestock, Derek) (Entered: 11/07/2024)
2024-11-07
1
MOTION to Strike 206 Declaration of Zac Denning and Defendant's Ensnarement Defense - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 11/07/2024)
2024-11-07
1
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding Motion to Strike Declaration of Zac Denning and Defendant's Ensnarement Defense - re 229 MOTION to Strike 206 Declaration of Zac Denning and Defendant's Ensnarement Defense. (Attachments: # 1 Exhibits A-B)(Fahnestock, Derek) (Entered: 11/07/2024)
2024-11-07
1
RESPONSE to Motion re 229 MOTION to Strike 206 Declaration of Zac Denning and Defendant's Ensnarement Defense filed by SBH Holdings LLC. (Attachments: # 1 Certificate of Service)(Brown, Glenn) (Entered: 11/13/2024)
2024-11-13
1
RESPONSE to Motion re 229 MOTION to Strike 206 Declaration of Zac Denning and Defendant's Ensnarement Defense filed by SBH Holdings LLC. (Attachments: # 1 Certificate of Service)(Brown, Glenn) (Entered: 11/13/2024)
2024-11-13
1
REDACTED VERSION of 227 Reply Brief,,, by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 11/14/2024)
2024-11-14
1
Redacted Document
2024-11-14
1
NOTICE of Change of Address for Monica Chou by Bausch & Lomb Incorporated (Fahnestock, Derek) (Entered: 11/14/2024)
2024-11-14
1
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding Reply in Support of Motion to Compel Production of Updated Damages Information. (Fahnestock, Derek) (Entered: 11/14/2024)
2024-11-14
1
REDACTED VERSION of 228 Declaration by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Attachments: # 1 Exs. 1-8)(Fahnestock, Derek) (Entered: 11/14/2024)
2024-11-14
1
- CORRECTING ENTRY
2024-11-14
1
No Actions
CORRECTING ENTRY: Previous redacted document has been deleted per request of filing counsel to be refiled. (smg)
2024-11-14
1
No Actions
MOTION for Hearing re 221 Oral Order,,,,,,, --Motion to Resolve Discovery Dispute-- - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 11/18/2024)
2024-11-18
1
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding Reply in Support of Motion to Strike Declaration of Zac Denning and Ensnarement Defense. (Fahnestock, Derek) (Entered: 11/18/2024)
2024-11-18
1
ORAL ORDER: The Court, having reviewed Plaintiff’s Motion to Strike the Declaration of Zac Denning and Defendant’s Ensnarement Defense (“Motion”), (D.I. 229 ), hereby ORDERS that the Court will plan to resolve the Motion on the papers, unless: (a) it determines after reviewing the briefing that oral argument is needed; or (b) any party advises the Court in advance that, were argument to be set, a newer attorney will argue the Motion, see Standing Order Regarding Courtroom Opportunities for Newer Attorneys, https://www.ded.uscourts.gov/sites/ded/files/StandingOrder2017.pdf. If either of those circumstances occurs, then the Court will schedule oral argument on the Motion in the future. Ordered by Judge Christopher J. Burke on 11/19/2024. (smg) (Entered: 11/19/2024)
2024-11-19
1
Oral Order
2024-11-19
1
No Actions
AMENDMENT TO TRIAL SCHEDULING ORDER: A Final Pretrial Conference is set for 4/16/2025 at 03:00 PM in Courtroom 6B before Judge Gregory B. Williams. A 5-Day Jury Trial is set for 4/21/2025 at 09:30 AM in Courtroom 6B before Judge Gregory B. Williams. Signed by Judge Gregory B. Williams on 1/2/25. (jaa) (Entered: 01/02/2025)
2025-01-02
1
ORAL ORDER: The Court, having conferred with Judge Williams regarding the pending summary judgment motions, hereby ORDERS as follows: (1) Judge Williams wishes that his procedures for summary judgment motions be utilized in the case, which are as follows: Any party that files more than one summary judgment motion shall number each motion to indicate the order in which the party wishes the Court to review its pending motions. The first motion the party wishes the Court to consider shall be designated #1, the second motion shall be designated #2, and so on. The Court will review the party's summary judgment motions in the order designated by the party. If the Court decides to deny a motion filed by the party, barring exceptional reasons determined sua sponte by the Court, the Court will not review any lower ranked summary judgment motions filed by the party.; and (2) As a result, by no later than one week from the date of this Order, the parties shall file a joint letter of no longer than one page confirming whether the current numbering of the summary judgment motions constitutes the order in which the parties wish the Court to review their respective pending motions (and if not, indicating the order in which the Court should review the pending summary judgment motions). Ordered by Judge Christopher J. Burke on 01/03/2025. (smg) (Entered: 01/03/2025)
2025-01-03
1
Oral Order
2025-01-03
1
No Actions
MOTION to Stay re 28 Scheduling Order, 241 Scheduling Order, 210 Order, 242 Oral Order - filed by SBH Holdings LLC. (Attachments: # 1 Certificate of Service Notice of Service) (Brown, Glenn) Modified on 3/27/2025 (sam). (Entered: 01/09/2025)
2025-01-09
1
NOTICE OF MOTION by SBH Holdings LLC ; (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) (Entered: 01/09/2025)
2025-01-09
1
MOTION to Strike 242 Oral Order - filed by SBH Holdings LLC. (Attachments: # 1 Certificate of Service Notice of Service) (Brown, Glenn) Modified on 3/27/2025 (sam). (Entered: 01/09/2025)
2025-01-09
1
MOTION to Strike 242 Oral Order - filed by SBH Holdings LLC. (Attachments: # 1 Certificate of Service Notice of Service) (Brown, Glenn) Modified on 3/27/2025 (sam). (Entered: 01/09/2025)
2025-01-09
2
NOTICE OF MOTION by SBH Holdings LLC re 245 MOTION to Strike 242 Oral Order,,,,, ; (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) (Entered: 01/09/2025)
2025-01-09
1
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding the Court's Oral Order (D.I. 242). (Fahnestock, Derek) (Entered: 01/10/2025)
2025-01-10
1
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock - D.I. 243 MOTION to Stay re 28 Scheduling Order,, 241 Scheduling Order, 210 Order, 242 Oral Order, 245 MOTION to Strike 242 Oral Order. (Fahnestock, Derek) Modified on 1/16/2025 (smg). (Entered: 01/15/2025)
2025-01-15
1
Letter to Judge Williams, & Judge Burke from Glenn A. Brown, DMD, Esquire regarding Motions - D.I. 243 MOTION to Stay re D.I. 28 Scheduling Order, D.I. 241 Scheduling Order, D.I. 210 Order, D.I. 242 Oral Order, D.I. 241 Scheduling Order, and D.I. 242 Oral Order. (Brown, Glenn) Modified on 1/23/2025 (smg). (Entered: 01/22/2025)
2025-01-22
1
ORAL ORDER: The Court, having reviewed Plaintiffs’ motion to strike (“Motion”), which seeks to strike Defendant’s disclosure-dedication non-infringement theory (“DD theory” or “theory”), (D.I. 196 ), and the briefing related thereto, (D.I. 197 ; D.I. 218 ; D.I. 222 ), hereby ORDERS that the Motion is GRANTED and the theory is STRICKEN, for the reasons and in the manner that follow: (1) With their Motion, Plaintiffs argue that Defendant’s DD theory should be stricken because: (a) in response to Plaintiffs’ March 2023 Interrogatory No. 8 (“ROG 8”), which asked Defendant to state any reason why it contends that the accused products would not infringe the asserted claims, Defendant did not identify the DD theory, nor was the theory mentioned in any of the other sources that Defendant referenced in its response to ROG 8; and (b) the theory showed up for the first time in Defendant’s recently-filed summary judgment papers. (D.I. 197 at 1; see also id., ex. C at 18); (2) Defendant does not deny that in the 19 months between its receipt of ROG 8 and the filing of the instant Motion, it never disclosed the DD theory to Plaintiffs in response to ROG 8. (D.I. 218 at 2-3; see also D.I. 222 at 1 (Plaintiffs pointing this out)) Instead, Defendant seems to suggest that it is no problem that it did not respond fully to the ROG or disclose this theory. Defendant suggests this is so either because: (a) since Plaintiffs had access to the asserted patents’ specification (i.e., the place where Defendant draws the evidence in support of its theory), then Plaintiffs should have guessed or somehow figured out that Defendant would raise this defense in the case; or (b) a defendant simply does not have to respond to an interrogatory seeking disclosure of such a defense (at least where the defense, like this one, implicates a question of law that a judge must resolve). (D.I. 218 at 1-3) Defendant’s arguments have no merit. Fed. R. Civ. P. 33(b)(2) says that a party must respond to an interrogatory within 30 days, and Fed. R. Civ. P. 26(e) says that a party must supplement a response to an interrogatory in a timely fashion if, inter alia, it learns that a prior disclosure is incomplete or incorrect. There is no exception to these rules of the kind Defendant suggests. Just like every other party in a patent case, Defendant had to timely respond to contention interrogatories—a means of discovery that plays an important narrowing role in patent litigation. See British Telecomms. PLC v. IAC/InterActiveCorp, Civil Action No. 18-366-WCB, 2020 WL 3047989 at *2 (D. Del. June 8, 2020) (noting that contention interrogatories are an important tool requiring parties to crystalize their theories early in patent cases); (D.I. 222 at 1 (Plaintiffs noting that they have “litigated the case based on the theories disclosed—and not disclosed—by Defendant[]”)). Defendant’s view to the contrary would, if permitted, wrongly allow a party—and not the Federal Rules of Civil Procedure—to determine whether it has to follow the discovery rules in a patent case, and to dictate what theories it does and doesn’t have to disclose. For all of these reasons, there can be no doubt that Defendant’s incredibly late disclosure of the DD theory in its summary judgment briefing (filed in September 2024) amounts to an untimely disclosure under Rule 26(e). See Matsushita Elec. Indus. Co., Ltd. v. Cinram Int’l, Inc., 299 F. Supp. 2d 348, 366 (D. Del. 2004) (excluding an expert’s theory raised for the first time in a party’s summary judgment briefing, where the theory should have been, but was not, disclosed in response to an interrogatory similar to ROG 8).; and (3) Pursuant to Fed. R. Civ. P. 37(c), then, the disclosure should be stricken unless it is substantially justified or harmless. To assess that question, our Court utilizes the Pennypack factors. See Astellas Pharma Inc. v. Actavis Elizabeth LLC, Civil Action No. 16-905-JFB-CJB, 2019 WL 2265570, at *1 (D. Del. May 13, 2019) (listing the factors). They all either support exclusion here, or, at best for Defendant, are neutral. As to the first factor, this 11th hour disclosure surely was a surprise to Plaintiffs, since the theory was not previously raised during the over-four-year pendency of this case. (D.I. 197 at 2) It also prejudices Plaintiffs, as although the disclosure-dedication issue is a question of law, it is one that can have factual underpinnings that would need to be explored via discovery, see Toro Co. v. White Consol. Indus., Inc., 383 F.3d 1326, 1330, 1333, 1334 (Fed. Cir. 2004) (noting that assessing whether the disclosure-dedication rule bars an infringement claim is a question of law, but also observing that resolution of disputed factual issues can inform that decision, such as disputes over whether a particular element was sufficiently disclosed and/or whether it is equivalent to a facet of the accused product); see also Road Widener, LLC v. Robert H. Finke & Sons, Inc., 579 F. Supp. 3d 345, 360-61 (N.D.N.Y. 2022) (same)—and Plaintiffs note that they have been deprived of the opportunity to seek out such evidence, (D.I. 197 at 2; D.I. 222 at 2). With regard to the second and third factors, there is little time for Plaintiffs to cure any prejudice without disrupting trial, since (numerous) summary judgment and Daubert motions have already been fully briefed, and trial begins on April 21, 2025. As to the fourth factor, while the Court would not use the term "bad faith" to describe this late disclosure, the circumstances here at minimum suggest that Defendant evidenced a flagrant disregard of its discovery obligations. See Natera, Inc. v. CareDx, Inc., Civil Action No. 20-38-CFC-CJB, D.I. 392 (D. Del. Oct. 6, 2023); Integra LifeScis. Corp. v. HyperBranch Med. Tech., Inc., Civil Action No. 15-819-LPS-CJB, 2017 WL 11558096, at *11-12 (D. Del. Dec. 11, 2017). And as to the fifth factor, as Plaintiffs note (and Defendant does not contest), Defendant “has argued other bases for noninfringement” such that “striking the instant theory would not leave it defenseless.” (D.I. 197 at 2) Ordered by Judge Christopher J. Burke on 02/05/2025. (smg) (Entered: 02/05/2025)
2025-02-05
1
Oral Order
2025-02-05
1
No Actions
ORAL ORDER: The Court, having reviewed Defendant's Daubert motion seeking to exclude the testimony of Plaintiffs’ damages expert Michael E. Tate regarding lost profits and to exclude the testimony of Plaintiffs’ technical expert Elizabeth J. Johnson, Ph.D. set forth in paragraph 51 (“Paragraph 51”) of her opening report, ("Motion"), (D.I. 149 ), and the briefing related thereto, (D.I. 149 ; D.I. 191 ; D.I. 226 at 24-25), and having considered the relevant legal standards, see 360Heros, Inc. v. GoPro, Inc., 569 F. Supp. 3d 198, 201 (D. Del. 2021); Personal Audio, LLC v. Google LLC, Civil Action No. 17-1751-CFC-CJB, 2021 WL 5038740, at *1-2 (D. Del. Oct. 25, 2021), hereby ORDERS that the Motion is DENIED for the reasons that follow: (1) In his opening expert report, Mr. Tate opines that Plaintiffs have suffered lost profits due to Defendant’s patent infringement, and he renders an opinion as to what those lost profits amount to. (D.I. 195, ex. 11) “To recover lost profits damages, the patentee must show a reasonable probability that, ‘but for’ the infringement, it would have made the sales that were made by the infringer.” Rite–Hite Corp. v. Kelley Co., 56 F.3d 1538, 1545 (Fed. Cir. 1995) (en banc). One acceptable (though non-exclusive) framework an expert can use to establish a patentee’s entitlement to lost profits is the four-factor Panduit test, set out in Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978). Mentor Graphics Corp. v. EVE-USA, Inc., 851 F.3d 1275, 1284 (Fed. Cir. 2017). The parties’ dispute here is focused on the second prong of the Panduit test, which requires the patentee to demonstrate the absence of acceptable non-infringing alternatives (“Panduit factor two”). Id. at 1285.; (2) With its Motion, Defendant argues that: (a) Mr. Tate’s assertion that there are no available and commercially acceptable non-infringing alternatives (made in paragraph 44 of his opening report) is based solely on a single paragraph (i.e., Paragraph 51) of Dr. Johnson’s report.; (b) Paragraph 51 is conclusory, Dr. Johnson fails to provide any methodology as to how she reached the conclusion therein, and she is also not qualified to express such a conclusion; and (c) therefore, both Paragraph 51 and Mr. Tate’s lost profits opinion must be excluded “as opinion testimony.” (D.I. 149 at 4-5, 7-8 (citing D.I. 195, ex. 11 at para. 44; D.I. 166, ex. 4 at para. 51)); (3) For two main reasons, the Court declines to exclude Mr. Tate’s lost profits opinion and Paragraph 51 of Dr. Johnson’s report.; (4) First, as Plaintiffs point out, it is well-settled that a patentee may rely on proof of its established market share instead of proof of no acceptable non-infringing alternatives in order to satisfy Panduit factor two. (D.I. 191 at 3-4 (citing cases)); see also, e.g., State Indus., Inc. v. Mor-Flo Indus., Inc., 883 F.2d 1573, 1578 (Fed. Cir. 1989); Sonos, Inc. v. D & M Holdings Inc., 297 F. Supp. 3d 501, 518-19 (D. Del. 2017); Izumi Prods. Co. v. Koninklijke Philips Elecs. N.V., 315 F. Supp. 2d 589, 614 (D. Del. 2004), aff’d, 140 F. App’x 236 (Fed. Cir. 2005). While Mr. Tate did opine that there are no acceptable non-infringing alternatives to the patented inventions, he nevertheless applied the market share approach with respect to the second Panduit factor, explaining that he “conservatively assumed in [his] analysis of [Plaintiffs’] lost profits that but for [Defendant’s] alleged infringement some of the sales of the Accused Products would have gone to other companies in the market.” (D.I. 195, ex. 11 at para. 45; see also id. at paras. 46, 53) Defendant does not challenge any aspect of Mr. Tate’s market share analysis here. (See D.I. 191 at 1) Thus, even assuming that Mr. Tate’s opinion regarding non-infringing alternatives is somehow deficient, that is not a fatal flaw to his lost profits opinion, since the United States Court of Appeals for the “Federal Circuit has condoned the use of the ‘market share’ approach that Mr. Tate applied as an alternative to showing the absence of acceptable non-infringing alternatives.” Sonos, 297 F. Supp. 3d at 518-19.; (5) Second, the Court agrees with Plaintiffs that Defendant’s argument mischaracterizes Mr. Tate’s and Dr. Johnson’s analysis regarding non-infringing alternatives as conclusory and confined to a single paragraph in each of their opening reports, when that is not actually the case. (D.I. 191 at 6-7) In her report, Dr. Johnson explains (albeit briefly) why she thinks there were no acceptable non-infringing alternatives—i.e., that the AREDS and AREDS 2 studies identified formulations shown to be effective in treating age-related macular degeneration (“AMD”), and these formulations are covered by the asserted patents; therefore, it follows that formulations not covered by the patents would not be supported by the clinical data from those studies and would not be acceptable to consumers. (D.I. 166, ex. 4 at para. 51; see also id. at para. 31 (noting that prior to the AREDS study, “there was no proven treatment that slowed or prevented the development of AMD”)) Similarly, Mr. Tate further noted in his opening report his understanding (based on the Rule 30(b)(6) deposition testimony of Defendant’s employee and marketing materials) that it was “important in the marketplace” to be able to market AMD eye vitamin products as “based on the formulas identified by the AREDS and AREDS 2 clinical trials[.]” (D.I. 195, ex. 11 at para. 26) Mr. Tate also explains that (based on his discussion with Plaintiffs’ employee and Plaintiffs’ experts’ reports) the marketplace for the relevant products is the eyecare professionals’ office, and that doctors recommend AREDS and AREDS 2 products “based on the proven safety and efficacy of those formulations, which contain the amounts of the ingredients claimed by the” asserted patents. (Id. at para. 27; see also id. at para. 43 (“Doctors recommend eye vitamins that are based on the AREDS or AREDS 2 formula because doing so allows doctors to make their recommendations based on a peer reviewed study reflecting the safety and efficacy of the studied formula for treating AMD.”)) These facts provide further context for the opinion that a patient would not view a formulation unsupported by the clinical trial data to be an acceptable alternative to those formulations identified by the AREDS and AREDS 2 studies. (See D.I. 191 at 1) Moreover, in their reply reports, Mr. Tate and Dr. Johnson address Defendant’s expert’s proposed non-infringing alternatives. (D.I. 195, ex. 1 at paras. 80-82; id., ex. 12 at paras. 15-20) Any disagreement that Defendant has with Mr. Tate’s and Dr. Johnson’s opinions in these regards does not render the opinions inadmissible; those disputes can be explored on cross-examination. See, e.g., Mfg. Res. Int'l, Inc. v. Civiq Smartscapes, LLC, Civil Action No. 17-269-RGA, 2019 WL 4198194, at *6 (D. Del. Sept. 4, 2019); Edgewell Pers. Care Brands, LLC v. Munchkin, Inc., Case No. LACV 18-3005 PSG (JPRx), 2022 WL 16957834, at *6 (C.D. Cal. Oct. 12, 2022).; and (6) Lastly, as for Defendant’s cursory suggestion that Dr. Johnson is not qualified to offer an opinion regarding non-infringing alternatives, the Court notes that Defendant never articulates why Dr. Johnson’s extensive background in nutritional sciences (including regarding the role of micronutrients in vison health) and experience with clinical trials would render her unqualified to give such an opinion. (See D.I. 166, ex. 4 at paras. 1-9; see also D.I. 226 at 25) With those seemingly ample qualifications being of record, and with Defendant’s argument in this regard a mystery, this cannot be a basis on which to grant the Motion. Ordered by Judge Christopher J. Burke on 02/10/2025. (smg) (Entered: 02/10/2025)
2025-02-10
1
ORAL ORDER: The Court, having reviewed Plaintiffs’ motion to strike (“Motion”), (D.I. 229 ), which essentially amounts to two different, unrelated such motions, and the briefing related thereto, (D.I. 230 ; D.I. 232 ; D.I. 239 ), hereby addresses the first of the two disputes raised via the Motion, which is Plaintiffs’ request that the declaration of Zac Denning (the “declaration”), filed in opposition to one of Plaintiffs’ motions for summary judgment, be stricken, (D.I. 230 at 1-2; D.I. 239 at 1-2). The Court hereby ORDERS that this portion of the Motion is GRANTED-IN-PART and DENIED-IN-PART in the manner and for the reasons that follow: (1) Previously in this case, Defendant twice tried to serve an expert report from Mr. Denning as an unretained expert pursuant to Fed. R. Civ. P. 26(a)(2)(C); both times, the Court struck those reports (for different reasons). (D.I. 124 ; D.I. 141 ; D.I. 189 at 9-12; see also D.I. 230 at 1) Mr. Denning’s new declaration, at issue here, reads a lot like the second of those two previously-stricken expert reports; in both, he is attempting to provide opinion and analysis that might help explain why certain claims of the asserted patents are indefinite and/or not enabled. (Compare D.I. 134, ex. 1, with D.I. 206 ); (2) Defendant asserts that the declaration should not be stricken because in it, Mr. Denning is not testifying as an expert, but instead is simply offering lay opinion testimony pursuant to Fed. R. Civ. P. 701. (D.I. 232 at 1-2) A witness is providing permissible lay opinion testimony pursuant to Rule 701 when he is testifying: “(a) rationally based on the witness’s perception; (b) [in a manner that is] helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) [his testimony is] not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Civ. P. 701 (emphasis added); see also Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 80-81 (3d Cir. 2009) (noting that pursuant to Rule 701, when “a lay witness has particularized knowledge by virtue of her experience, she may testify—even if the subject matter is specialized or technical—because the testimony is based upon the layperson’s personal knowledge rather than on specialized knowledge within the scope of Rule 702”).; (3) There are a few portions of the declaration that do appear to be based (at least, according to Mr. Denning’s statements therein) on his percipient, first-hand knowledge of facts as of the relevant timeframe (i.e., in and around 2001 and thereafter). See Campmor, Inc. v. Brulant, LLC, Civ. No. 09-5465 (WHW), 2013 WL 12147616, at *5 (D.N.J. Apr. 30, 2013) (permitting fact witness testimony about technical matters pursuant to Rule 701, where the witnesses were able to testify as to their work as e-commerce vendors for the plaintiff and give their first-hand observations about relevant matters, even though they were providing opinions about “specialized or technical subject matter”); see also McGoveran v. Amazon Web Servs., Inc., No. 1:20-cv-01399-SB, 2024 WL 4626253, at *3 (D. Del. Oct. 30, 2024) (declining to strike declarations of senior engineers of defendant in which they opined about how Amazon Connect works, since such opinions were based upon personal knowledge). The Motion is thus DENIED as to those portions of the declaration, more specifically as to: (a) paragraphs 1 and 2, the fifth and seventh through ninth sentences of paragraph 3 and paragraph 20 (basic background information about Mr. Denning or his declaration); and (b) the second through fourth sentences of paragraph 8, the first, third and fourth sentences of paragraph 9, paragraphs 11, 12 and 15, the first through fourth sentences of paragraph 16, and paragraph 18 (Mr. Denning’s recollection of events in 2001 and thereafter). However, the Motion is GRANTED as to the remainder of the declaration; those portions of the declaration are thus STRICKEN. In those portions, Mr. Denning is not providing opinion evidence based on his first-hand perception or knowledge of events in the relevant timeframe. See I-Mab Biopharma v. Inhibrx, Inc., Civil Action No. 22-276-CJB, D.I. 478 (D. Del. Oct. 21, 2024). Instead, therein he is describing how he only reviewed the patents-in-suit “as a result of the subject litigation[,]” and he is giving his expert opinions about whether he amounts to a POSITA, or about how he and/or a POSITA would view the patents’ disclosures, or about what he would have thought about certain issues back in the relevant timeframe “were [he] to have read” the patents back then, or about what he thinks about Plaintiffs’ expert’s opinions, or about what additional publications (that he did not know about in the relevant timeframe) say about things that he knows or has observed. (D.I. 206 at paras. 3-10, 13-14, 16-17, 19) This is all testimony of the type a retained expert would provide (i.e., were they to be hired after a patent litigation was instituted) about matters of scientific, technical, or specialized knowledge—it is not testimony of a lay opinion witness about matters or events that person observed first-hand. Ordered by Judge Christopher J. Burke on 02/10/2025. (smg) (Entered: 02/10/2025)
2025-02-10
1
Oral Order
2025-02-10
1
No Actions
ORAL ORDER: The Court, having reviewed Plaintiffs’ motion to strike (“Motion”), (D.I. 229 ), and the briefing related thereto, (D.I. 230 ; D.I. 232 ; D.I. 239 ), hereby addresses the second of the two disputes raised via the Motion, which is Plaintiffs’ request that the Court strike Defendant’s “new theory of ‘ensnarement[,]’” (D.I. 230 at 1). The Court ORDERS that this portion of the Motion is DENIED for the reasons that follow: (1) This portion of the Motion relates to the ensnarement analysis regarding claims of patent infringement that are made pursuant to the doctrine of equivalents (“DOE”); this analysis was discussed by the United States Court of Appeals for the Federal Circuit in Wilson Sporting Goods Co. v. David Geoffrey & Assocs., 904 F. 2d 677, 684 (Fed. Cir. 1990). In their briefing, the parties seem to disagree about which side has to do what—and in what order—to properly tee this ensnarement issue up for the district court. (D.I. 230 at 2-3; D.I. 232 at 3-4; D.I. 239 at 2) So far as the Court can tell, the way it is supposed to work (assuming that the parties are relying on a hypothetical claim analysis to assess whether a DOE theory ensnares the prior art) is that: (a) at some point, the patentee has to put the accused infringer on notice that it is asserting infringement under the DOE; (b) then, the accused infringer has to give the patentee some notice that it intends to make an ensnarement defense to the DOE infringement allegation; (c) next, the burden is on the patentee to construct a hypothetical claim that would assertedly cover the accused device; (d) then the accused infringer has the burden to identify prior art that purportedly would render that hypothetical claim invalid; and (e) if the accused infringer meets that burden, then the burden swings back to the patentee to persuade the court that the hypothetical claim is patentable over the prior art identified by the accused infringer. See, e.g., Jang v. Bos. Sci. Corp., 872 F.3d 1275, 1287 (Fed. Cir. 2017); Interactive Pictures Corp. v. Infinite Pictures, Inc., 274 F.3d 1371, 1380 (Fed. Cir. 2001); AgroFresh Inc. v. Essentiv LLC, C.A. No. 16-662 (MN), 2020 WL 7024867, at *15 (D. Del. Nov. 30, 2020); UCB, Inc. v. Watson Lab’ys, Inc., C.A. No. 14-1083-LPS-SRF, 2017 WL 11646645, at *26 (D. Del. Nov. 14, 2017).; (2) Plaintiffs assert that Defendant’s “ensnarement theory” should be stricken for two reasons, but neither can win the day here.; (3) First, Plaintiffs argue that their Motion should be granted because although Defendant first raised this theory in opposition to Plaintiffs’ motion for summary judgment of infringement, Defendant “never said anything about any ‘ensnarement’ in any interrogatory response or other pleading” at any time before that. (D.I. 230 at 2) The problem with this argument is that if Plaintiffs are trying to demonstrate that Defendant’s theory should be stricken as untimely, then Plaintiffs need to be specific about how and when they think that Defendant should have first disclosed this theory—so that the Court can evaluate whether it agrees or not. Should the theory have been first disclosed in an “interrogatory response” or in a “pleading”? If Plaintiffs’ argument was the former, then they should also have identified and attached the relevant interrogatory that they argue should have prompted the response (along with Defendant’s answer thereto). See Guidelines for Discovery Disputes at para. 5 (“If the discovery dispute relates to certain discovery requests (e.g., interrogatories...), then the moving party should attach those discovery requests and any relevant responses as exhibits to its letter brief[.]”), “Guidelines” tab, Judge Burke’s portion of the District Court’s website, www.ded.uscourts.gov. And depending on the answer to these questions, Plaintiffs would need to explain why, as of the time the relevant pleading was filed or the relevant interrogatory response was submitted, Plaintiffs had actually informed Defendant of their DOE-related infringement arguments. But Plaintiffs’ Motion did not include these details, and so the Court is not in a position to grant them the relief they seek on this ground.; and (4) Second, Plaintiffs assert that during his deposition, Defendant’s expert “withdrew” this theory—and so it is improper for Defendant to continue to press the theory in its summary judgment briefing. (D.I. 230 at 3 (citing id., ex. B at 184-87)) But the Court is not convinced that a fleeting statement by Defendant’s expert (made during the heat of the moment in a deposition) to the effect that he “think[s] he should” withdraw his ensnarement-related opinion, (D.I. 230, ex. B at 187), is enough to amount to formal withdrawal of such a position by Defendant. Ordered by Judge Christopher J. Burke on 02/13/2025. (smg) (Entered: 02/13/2025)
2025-02-13
1
Oral Order
2025-02-13
1
No Actions
ORAL ORDER: The Court, having reviewed Plaintiffs' discovery dispute motion ("Motion"), (D.I. 238 ), in which Plaintiffs seek (a) updated damages information from Defendant post-dating March 23, 2021 and (b) related relief, (D.I. 224 at Proposed Order), and the briefing related thereto, (D.I. 224; D.I. 225; D.I. 236), hereby ORDERS that the Motion is GRANTED. In adopting Defendant's proposal for Section 6(c) of the Scheduling Order back in July 2022, all the Court was doing was ordering that Defendant should quickly provide damages discovery up through March 23, 2021--without any need for Plaintiffs to serve damages-related discovery requests in order to get at least that damages information. (D.I. 28 at para. 6(c)) At the time, the Court saw that there was also a dispute between the parties about whether Plaintiffs would be entitled to damages discovery after March 23, 2021. (D.I. 27) The Court assumed that, after the Scheduling Order was entered, Plaintiffs would propound discovery requests seeking such further damages information, and--to the extent that Defendant continued to resist production thereafter, and the parties could not resolve the issue through meeting and conferring--that the parties would eventually bring a discovery dispute to the Court regarding that issue. That has only now occurred, via the filing of Plaintiffs' Motion in November 2024. (D.I. 238) Under normal circumstances, this would be very late in the game to bring a discovery-related motion before the Court. But the Court acknowledges that when it entered the Scheduling Order in July 2022, it never really explained its expectations about how further damages-related disputes would proceed (i.e., the explanation it has just provided above in this Order). As a result, when the Court simply adopted Defendant's proposal as to Section 6(c) of the Scheduling Order--without providing any further instruction to the parties about how to tee up related damages discovery disputes in the future--this might well have confused the parties as to how and when they should address such issues going forward. In light of this Court-generated uncertainty, the Court will consider the Motion now, despite the fact that it was filed after the close of fact discovery and close to trial. And having done so, the Court grants the Motion, as Defendant articulates no good reason on the merits why the Court should do otherwise. In that regard, Defendant suggests that the Motion should be denied because it might prevail on summary judgment as to its assertion that the 522 patent is invalid (which would moot the requested relief). (D.I. 225 at 1) But the possibility that a party might eventually prevail on the merits at summary judgment as to a legal issue like invalidity (and thus moot a related request for damages discovery) is no basis to resist production of otherwise relevant discovery. Plaintiffs' Proposed Order is thus ADOPTED, and Defendant should provide the relevant sought-after discovery within 14 days from today's date. Ordered by Judge Christopher J. Burke on 2/18/2025. (mlc) (Entered: 02/18/2025)
2025-02-18
1
OBJECTIONS by SBH Holdings LLC to 218 Answering Brief in Opposition, 196 MOTION to Strike Defendant's Disclosure-Dedication Argument, 222 Letter, 197 Letter, 250 Oral Order. (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) Modified on 2/19/2025 (smg). (Entered: 02/18/2025)
2025-02-18
1
OBJECTIONS by SBH Holdings LLC to 218 Answering Brief in Opposition, 196 MOTION to Strike Defendant's Disclosure-Dedication Argument, 222 Letter, 197 Letter, 250 Oral Order. (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) Modified on 2/19/2025 (smg). (Entered: 02/18/2025)
2025-02-18
2
Oral Order
2025-02-18
1
No Actions
Letter to Judge Burke from SBH Holdings LLC regarding Discovery Teleconference - re 249 Letter, 241 Scheduling Order, 210 Order, 250 Oral Order, 248 Letter,. (Brown, Glenn) Modified on 2/21/2025 (smg). (Entered: 02/19/2025)
2025-02-19
1
ORAL ORDER: The Court has reviewed Plaintiffs’ February 19, 2025 letter requesting a discovery dispute teleconference regarding one discovery dispute. (D.I. 256 ) It hereby ORDERS as follows with regard to this dispute: (1) By February 24, 2025, any party seeking relief shall file a letter, not to exceed two (2) single-spaced pages, in no less than 12-point font, outlining the issues in dispute and its position on those issues.; (2) By February 28, 2025, any party opposing the application for relief shall file a letter, not to exceed two (2) single-spaced pages, in no less than 12-point font, outlining that party's reasons for its opposition.; (3) By March 5, 2025, the party seeking relief shall file a reply letter brief, not to exceed one (1) single-spaced page, in no less than 12-point font.; (4) By March 5, 2025, the moving party shall file a Motion To Resolve Discovery Dispute.; (5) The parties should also consult and follow Judge Burke's "Guidelines for Discovery Disputes," which is found in the "Guidelines" tab on Judge Burke's portion of the District Court's website.; (6) The Court will plan to resolve the dispute on the papers, unless: (a) it determines after reviewing the briefing that oral argument is needed; or (b) any party advises the Court in advance that, were argument to be set, a newer attorney will argue the dispute, see Standing Order Regarding Courtroom Opportunities for Newer Attorneys, https://www.ded.uscourts.gov/sites/ded/files/StandingOrder2017.pdf. If either of those circumstances, occurs, then the Court will schedule oral argument on the dispute in the future. Ordered by Judge Christopher J. Burke on 02/19/2025. (smg) (Entered: 02/20/2025)
2025-02-19
1
Oral Order
2025-02-20
1
No Actions
Letter to Judge Burke from SBH Holdings LLC regarding Discoovery Dispute - re 255 Objections, 257 Oral Order, 256 Letter. (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) Modified on 2/24/2025 (sam). (Entered: 02/24/2025)
2025-02-24
1
MEMORANDUM ORDER GRANTING D.I. 158 MOTION to Preclude Testimony of Dr. Matthew Kaser for Lack of Qualifications and Applying Incorrect Law filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. Ordered by Judge Christopher J. Burke on 2/24/2025. (mlc) (Entered: 02/24/2025)
2025-02-24
1
REPORT AND RECOMMENDATION: The Court, having reviewed Plaintiffs’ Motion for Summary Judgment No. 1 (“Motion No. 1”) of No Invalidity Under 35 U.S.C. 103 (“Section 103”), (D.I. 153 ), which seeks summary judgment of no invalidity for obviousness with respect to the asserted claims of the 297 and 522 patents, (see D.I. 165 at 6, 8), and the briefing related thereto, (id. at 4-8; D.I. 207 at 8-10; D.I. 227 at 1-2), and having considered the legal standard applicable to motions for summary judgment pursuant to Fed. R. Civ. P. 56, see Pers. Audio, LLC v. Google LLC, Civil Action No. 17-1751-CFC-CJB, 2022 WL 20801595, at *2-3 (D. Del. Dec. 7, 2022), hereby recommends that Plaintiffs’ Motion No. 1 be GRANTED for the following reasons: (1) A patent claim is invalid as obvious under 35 U.S.C. § 103 “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art [‘POSITA’] to which said subject matter pertains.” 35 U.S.C. § 103(a). “Obviousness is a question of law based on underlying factual findings: (a) the scope and content of the prior art; (b) the differences between the claims and the prior art; (c) the level of ordinary skill in the art; and (d) objective indicia of nonobviousness.” Kinetic Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1360 (Fed. Cir. 2012) (citing Graham v. John Deere Co. of Kan. City, 383 U.S. 1, 17-18 (1966)). A party seeking to invalidate a patent on the basis of obviousness must establish (by clear and convincing evidence) that a POSITA would have been motivated to combine the teachings of the prior art references to achieve the claimed invention, and that the POSITA would have had a reasonable expectation of success in doing so. Id. It follows that a patentee moving for summary judgment of no invalidity for obviousness must show that the defendant, “who bears the burden of proof at trial, failed to produce clear and convincing evidence on an essential element of a defense upon which a reasonable jury could invalidate the patent.” Eli Lilly & Co. v. Barr Lab’ys, Inc., 251 F.3d 955, 962 (Fed. Cir. 2001); see also Unicorn Energy AG v. Tesla Inc., 740 F. Supp. 3d 930, 942 (N.D. Cal. 2024) (same); Douglas Dynamics, LLC v. Buyers Prods. Co., No. 09-cv-261-wmc, 2014 WL 988755, at *8 (W.D. Wis. Mar. 13, 2014) (“[The plaintiff] has also moved for summary judgment of no invalidity, meaning the court must determine whether [the defendant] has produced enough evidence to allow a reasonable jury to find that [the asserted] claim[s are] invalid.”) (emphasis in original).; (2) In their opening brief, Plaintiffs assert that the “entirety” of Defendant’s Section 103 challenge with respect to all asserted claims of the asserted patents is contained in Defendant’s Invalidity Contentions, and that summary judgment is warranted because Defendant’s obviousness argument “is completely unsupported by any evidence, including expert testimony; nor can attorney argument alone meet its burden.” (D.I. 165 at 4, 8); (3) Plaintiffs are correct. In Defendant’s Invalidity Contentions (which, as they relate to obviousness, comprise a little less than one page of text in total), Defendant: (a) flatly states that the asserted patents are “invalid for obviousness over prior art”; (b) lists two “[r]elevant documents” and four prior art references; and (c) simply asserts that “[c]ombinations of [these] references would show all asserted claims to have been obvious to a [POSITA].” (D.I. 166, ex. 3 at 8-9) That is it. There is absolutely no further analysis or explanation provided regarding Defendant’s Section 103 theories.; (4) Defendant’s answering brief fares little better, as it does not point to evidence that could be sufficient to support a theory that the asserted claims are invalid as obvious. Instead, here, Defendant simply: (a) recites the text of certain claims found in two of the six references disclosed in its Invalidity Contentions (Gorsek and LaHaye, which was incorrectly identified as “Lattange” in the Invalidity Contentions); (b) states the bald conclusion that the “subject invention would have been completely obvious” to a POSITA in view of Gorsek alone or in combination with LaHaye; and (c) contains a few lines of attorney argument vaguely asserting how Gorsek or LaHaye (or both) recite all essential elements of Plaintiffs’ patent claims. (D.I. 207 at 9-10; see also D.I. 165 at 5 n.1) Gorsek and LaHaye were both considered during prosecution of the asserted patents. (D.I. 166, ex. 3 at 8; see also D.I. 165 at 7); Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F. 2d 1464, 1467 (Fed. Cir. 1990) (noting that the burden to demonstrate invalidity is “especially difficult when the prior art was before the... examiner during prosecution”). Defendant cites to no expert testimony in support of its conclusion that the asserted claims would have been obvious in view of Gorsek and/or Gorsek and LaHaye. (See D.I. 227 at 2) On this record, then, there is essentially no usable analysis establishing, for example, the differences between the asserted claims and the prior art, why a POSITA would be motivated to combine the teachings in Gorsek and/or Gorsek and LaHaye to achieve the claimed inventions, or why a POSITA would have been motivated to combine those teachings to arrive at the claimed invention with a reasonable expectation of success. (See id. at 1); (5) The summary judgment stage “is the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Tyco Healthcare Grp., LP v. C.R. Bard, Inc., 818 F. Supp. 2d 777, 787 (D. Del. 2011) (internal quotation marks and citation omitted); see also Douglas Dynamics, LLC, 2014 WL 988755, at *8. The technology at issue (relating to “the art of nutritional supplement compositions for eye health and their methods of use”) is not simple technology, (D.I. 166, ex. 4 at para. 28), and the factfinder cannot be just left to guess at the above-referenced aspects of the obviousness analysis. Without any evidence to support its barebones assertion of obviousness set out in its Invalidity Contentions, Defendant does not come close to meeting its burden. See, e.g., Invista N. Am. S.a.r.l. v. M & G USA Corp., 951 F. Supp. 2d 626, 652 (D. Del. 2013) (“[T]he field of polymer chemistry is a complex area of technology, and where patent claims involve complex issues of technology, expert testimony is required to aid the fact finder... [w]ithout expert testimony that the combination of the ′925 and Moore references was obvious, M & G cannot carry its burden of clear and convincing evidence for obviousness.”); see also Creative Compounds, LLC v. Starmark Lab’ys, 651 F.3d 1303, 1312 (Fed. Cir. 2011) (“Creative's evidentiary shortcomings are not overcome by its reliance on attorney argument. It is well established that conclusory statements of counsel... that a patent is invalid do not raise a genuine issue of material fact.”); Qorvo, Inc. v. Akoustis Techs., Inc., Case No. 1:21-cv-01417-JPM, 2024 WL 5336414, at *3-4 (D. Del. May 2, 2024) (“Akoustis has not presented any material in the record which suggests that they would be able to show motivation to combine[;].... [t]hey therefore cannot meet their burden to show invalidity by clear and convincing evidence.”).; and (6) The parties are directed to the Court's Standing Order for Objections Filed Under Fed. R. Civ. P. 72, dated March 7, 2022, a copy of which is available on the District Court's website, located at http://www.ded.uscourts.gov. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 3/11/2025. Ordered by Judge Christopher J. Burke on 02/25/2025. (sam) (Entered: 02/25/2025)
2025-02-25
1
Report and Recommendations
2025-02-25
1
No Actions
Letter to The Honorable Christopher J. Burke from Derek J. Fahnestock regarding Opposition to Defendant's Request for Resolution of Discovery Dispute. (Attachments: # 1 Exhibits 1-2)(Fahnestock, Derek) (Entered: 02/28/2025)
2025-02-28
1
RESPONSE TO OBJECTIONS by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC re 255 Objections, . (Fahnestock, Derek) (Entered: 03/04/2025)
2025-03-04
1
Letter to Judge Burke from SBH Holdings LLC regarding SBH'S REPLY LETTER BRIEF IN SUPPORT OF DEFENDANTS REQUEST FOR RESOLUTION OF DISCOVERY DISPUTE - re 261 Letter. (Attachments: # 1 Text of Proposed Order Proposed Order)(Brown, Glenn) (Entered: 03/05/2025)
2025-03-05
1
ORAL ORDER: The Court hereby ORDERS that by no later than the close of business today, Defendant shall file a Motion to Resolve Discovery Dispute with respect to its pending discovery dispute, as required by the Court's February 19, 2025 Oral Order. (D.I. 257) Ordered by Judge Christopher J. Burke on 03/06/2025. (sam) (Entered: 03/06/2025)
2025-03-06
1
MOTION for Discovery Dispute to be Resolved - filed by SBH Holdings LLC. (Attachments: # 1 Certificate of Service Notice of Service)Motions referred to Christopher J. Burke.(Brown, Glenn) (Entered: 03/06/2025)
2025-03-06
1
MOTION for Discovery Dispute to be Resolved - filed by SBH Holdings LLC. (Attachments: # 1 Certificate of Service Notice of Service)Motions referred to Christopher J. Burke.(Brown, Glenn) (Entered: 03/06/2025)
2025-03-06
2
Oral Order
2025-03-06
1
No Actions
OBJECTIONS by SBH Holdings LLC to 204 Declaration, 166 Declaration,,, 165 Opening Brief in Support,,, 259 Memorandum and Order, to Magistrate Judge Burke's Memorandum Order. (Attachments: # 1 Exhibit exhibit 1 trial transcript, # 2 Certificate of Service Certificate of service)(Brown, Glenn) (Entered: 03/10/2025)
2025-03-10
1
OBJECTIONS by SBH Holdings LLC to 204 Declaration, 166 Declaration,,, 165 Opening Brief in Support,,, 259 Memorandum and Order, to Magistrate Judge Burke's Memorandum Order. (Attachments: # 1 Exhibit exhibit 1 trial transcript, # 2 Certificate of Service Certificate of service)(Brown, Glenn) (Entered: 03/10/2025)
2025-03-10
2
OBJECTIONS by SBH Holdings LLC to 204 Declaration, 166 Declaration,,, 165 Opening Brief in Support,,, 259 Memorandum and Order, to Magistrate Judge Burke's Memorandum Order. (Attachments: # 1 Exhibit exhibit 1 trial transcript, # 2 Certificate of Service Certificate of service)(Brown, Glenn) (Entered: 03/10/2025)
2025-03-10
2
MEMORANDUM ORDER re 255 that SBH's Objection to Judge Burke's Order Dated February 12, 2025, Striking Disclosure-Dedication Arguments is OVERRULED. Signed by Judge Gregory B. Williams on 3/11/25. (jaa) (Entered: 03/11/2025)
2025-03-11
1
ORAL ORDER: The Court, having reviewed Plaintiffs’ Daubert motion seeking to exclude the testimony of Defendant’s damages expert Mr. Brian Buss in part, ("Motion"), (D.I. 159 ), and the briefing related thereto, (D.I. 165 at 42-50; D.I. 207 at 52-57; D.I. 227 at 24-25), and having considered the relevant legal standards, see 360Heros, Inc. v. GoPro, Inc., 569 F. Supp. 3d 198, 201-02 (D. Del. 2021); Pers. Audio, LLC v. Google LLC, Civil Action No. 17-1751-CFC-CJB, 2021 WL 5038740, at *1-2 (D. Del. Oct. 25, 2021), hereby ORDERS that the Motion is GRANTED for the reasons that follow: (1) Plaintiffs first request the exclusion of Mr. Buss’s testimony that there are 22 acceptable, non-infringing alternative products (the “22 products”) that were not manufactured or sold by Plaintiffs and Defendant. (D.I. 165 at 44; see also D.I. 167, ex. 29 at 7 & Schedule 6) Mr. Buss’s report does not contain an infringement analysis with respect to the 22 products, nor did Mr. Buss rely on a technical expert’s provision of any such analysis. (See D.I. 165 at 44; D.I. 166, ex. 7 at 16, 78, 160) Instead, Mr. Buss and his consulting team identified these products from internet searches and determined that they are non-infringing alternatives because they saw no evidence that Plaintiffs had sued or were suing the products’ manufacturer or distributor for infringement, and because the products’ list of ingredients differed in some way from the formulations claimed in the asserted patents. (D.I. 166, ex. 7 at 47-48, 85, 97-98) However, Mr. Buss acknowledged that: (a) he is not a technical or infringement expert and (b) he did not have the information required to determine whether the 22 products meet the claims of the asserted patents, as such an analysis was beyond the scope of his report. (Id. at 23, 83-84, 100-01) In light of these admissions, the Court agrees with Plaintiffs that Mr. Buss is not qualified to opine that the 22 products are non-infringing. Indeed, Defendant does not even attempt to argue that Mr. Buss is so qualified; instead, it suggests that his opinion regarding the 22 products “cannot be Dauberted out even if he is wrong in his listing of such” because Plaintiffs bear the burden of proof with regard to establishing the absence of non-infringing alternatives. (D.I. 207 at 53) Even so, Mr. Buss may not provide an opinion that he is not qualified to give when (as here) he has been given no support for that opinion by a technical expert. For this reason, this portion of Plaintiffs’ Motion is granted. See Acceleration Bay LLC v. Activision Blizzard Inc., Civil Action No. 1:16-cv-00453-RGA, 2019 WL 4194060, at *8 (D. Del. Sept. 4, 2019) (excluding damages expert’s assumption that certain products were non-infringing alternatives, where no technical experts offered such an opinion, because a “damages[] expert’s assumption is not sufficient to support a damages opinion based on a particular non-infringing alternative”); see also Asetek Danmark A/S v. CoolIT Sys. Inc., Case No. 19-cv-00410-EMC, 2022 WL 21306657, at *14, *32 (N.D. Cal. Oct. 4, 2022) (same); Finalrod IP, LLC v. Endurance Lift Sols., Inc., Case No. 2:20-cv-00189-JRG-RSP, 2021 WL 4943649, at *2-3 (E.D. Tex. Oct. 22, 2021) (same).; (2) Next, Plaintiffs request that the Court exclude Mr. Buss’s opinion that there are acceptable non-infringing alternatives which “prevents use of a lost profits methodology to calculate economic damages” under Panduit factor two. (D.I. 167, ex. 29 at 8; see also D.I. 165 at 45 n.12) Plaintiffs’ expert relied on the market share approach to determine lost profits. (See D.I. 195, ex. 11 at para. 45; see also id. at paras. 46, 53) In response, Mr. Buss testified that he was not aware of the market share approach being an acceptable methodology in determining lost profits. (D.I. 166, ex. 7 at 132-34) Defendant seems to echo this position in part in its briefing, asserting there that Mr. Buss’s opinion that “lost profits are unrecoverable is correct, regardless of whether a market share approach is asserted by [P]laintiffs, as that approach requires the absence of non-infringing competitive products.” (D.I. 207 at 52-53) Yet as the Court previously explained, “a patentee may rely on proof of its established market share instead of proof of no acceptable non-infringing alternatives in order to satisfy Panduit factor two.” (D.I. 251 (citing cases) (emphasis added); see also D.I. 165 at 46) Because Mr. Buss’s testimony that the presence of non-infringing alternatives prevents lost profit damages is based on an incorrect understanding of the law, the testimony is unreliable and must be excluded. See Minerva Surgical, Inc. v. Hologic, Inc., C.A. No. 18-00217-JFB-SRF, 2021 WL 3048447, at *6 (D. Del. July 20, 2021) (“An expert’s opinion that applies a legally erroneous or irrelevant analysis is inadmissible.”); see also VLSI Tech. LLC v. Intel Corp., C.A. No. 18-966-CFC-CJB, 2022 WL 2304112, at *3 (D. Del. June 27, 2022) (same).; (3) Lastly, Plaintiffs argue that Mr. Buss’s reliance on five agreements for his Georgia-Pacific factor 2 analysis must be excluded because he failed to demonstrate that all of the agreements are technologically comparable to the hypothetical license (and further failed to demonstrate that two of the agreements are economically comparable to the hypothetical license). (D.I. 165 at 46-50) In response, Defendant states that: (a) Mr. Buss does not really rely on four of those five licenses for any purpose, so those four licenses are not relevant to his expert analysis and (b) Mr. Buss does properly make reference to one of the five licenses—the Genentech/Regeneron license—but gives that license a neutral effect. (D.I. 207 at 56-57 (citing D.I. 167, ex. 29 at Schedule 5 at 1)) Defendant’s only attempt to establish comparability for the Genentech/Regeneron license is to point to Mr. Buss’s conclusory notation (one that he is, in any event, not qualified to make) that the agreement involves “comparable IP to be used in the treatment of macular degeneration (‘AMD’) and other eye issues.” (D.I. 167, ex. 29 at Schedule 5 at 1 (cited in D.I. 207 at 56)) This is not sufficient. See Zimmer Surgical, Inc. v. Stryker Corp., 365 F. Supp. 3d 466, 495-96 (D. Del. 2019) (precluding expert from relying on a particular license in his reasonable royalty analysis, where the expert failed to establish technological and economical comparability of the license to the asserted patents). Indeed, Mr. Buss acknowledged in his deposition that he had not intended to and did not make any technological comparison between these licenses and the patents-in-suit. (D.I. 166, ex. 7 at 165) Thus, Plaintiffs’ Motion is granted with respect to Mr. Buss’s analysis of the five agreements.; and (4) Objections to this Order are due by March 24, 2025 and responses are due by April 3, 2025. Ordered by Judge Christopher J. Burke on 03/13/2025. (sam) (Entered: 03/13/2025)
2025-03-13
1
Order on Motion to Preclude
2025-03-13
1
No Actions
MEMORANDUM ORDER re 260 that Magistrate Judge Burke's Report and Recommendation is ADOPTED. Signed by Judge Gregory B. Williams on 3/14/25. (jaa) (Entered: 03/14/2025)
2025-03-14
1
REPORT AND RECOMMENDATIONS re D.I. 178 MOTION for Summary Judgment #3 filed by SBH Holdings LLC. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 3/26/2025. Signed by Judge Christopher J. Burke on 03/17/2025. (sam) (Entered: 03/17/2025)
2025-03-17
1
MOTION for Pro Hac Vice Appearance of Attorney Joshua D. Calabro - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. Motions referred to Christopher J. Burke.(Fahnestock, Derek) (Entered: 03/20/2025)
2025-03-20
1
Pro Hac Vice Fee - Credit Card Payment received for Joshua D. Calabro. ( re 271 MOTION for Pro Hac Vice Appearance of Attorney Joshua D. Calabro )( Payment of $ 50, receipt number ADEDC-4641863).(Fahnestock, Derek) (Entered: 03/20/2025)
2025-03-20
1
-District Court Pro Hac Vice Fee - 01 Attorney Credit Card Payment
2025-03-20
1
No Actions
Order on Motion to Appear Pro Hac Vice
2025-03-21
1
No Actions
SO ORDERED, D.I. 271 Motion to Appear Pro Hac Vice of Attorney Joshua D. Calabro - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. Ordered by Judge Christopher J. Burke on 03/21/2025. (sam)
2025-03-21
1
No Actions
RESPONSE TO OBJECTIONS by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC re 266 Objections, 259 Memorandum and Order, -- Plaintiffs' Response to SBH's Objections to Magistrate Judge Burke's Memorandum Order Granting Plaintiffs' Daubert Motion Regarding Dr. Matthew Kaser (D.I. 259) --. (Attachments: # 1 Exhibit 1)(Fahnestock, Derek) (Entered: 03/24/2025)
2025-03-24
1
OBJECTION to 270 Report and Recommendations ON FUZZY LI,ITATIOONS by SBH Holdings LLC. (Attachments: # 1 Certificate of Service Notice of Service)(Brown, Glenn) (Entered: 03/26/2025)
2025-03-26
1
STIPULATION TO EXTEND TIME for the parties to file (i) proposed voir dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms to April 7, 2025 - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 03/26/2025)
2025-03-26
1
Letter to Judge Burke from SBH Holdings LLC regarding Request for Discovery Teleconference - re 254 Oral Order. (Brown, Glenn) Modified on 3/28/2025 (sam). (Entered: 03/27/2025)
2025-03-27
1
SO ORDERED Granting 275 STIPULATION and Proposed Order to Extend Time (*Reset Deadlines: (i) proposed voir dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms are now due by April 7, 2025 (see Order for further details). Signed by Judge Gregory B. Williams on 3/27/2025. (nms) (Entered: 03/27/2025)
2025-03-27
1
REPORT AND RECOMMENDATIONS re D.I. 155 MOTION for Summary Judgment No. 3 of No Invalidity Under 35 U.S.C. § 112 and Broadening During Reexamination filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 4/3/2025. Signed by Judge Christopher J. Burke on 03/27/2025. (sam) (Entered: 03/27/2025)
2025-03-27
1
ORAL ORDER: The Court, having reviewed Defendant's motion to strike, modify or vacate the Court's January 3, 2025 oral order (the "January 3 oral order") ("motion to strike"), (D.I. 245 ), as well as Defendant's motion to stay the case pending the disposition of the motion to strike ("motion to stay"), (D.I. 243 ), and the briefing related thereto, (D.I. 243 ; D.I. 245 ; D.I. 248 ; D.I. 249 ), notes that the January 3 oral order at issue in the motion to strike was issued at Judge Williams' request and implements Judge Williams' standard procedures for summary judgement motions ("Judge Williams' procedures"), (D.I. 242 ). The Court therefore considers the motion to strike and motion to stay as being before Judge Williams. Additionally, pursuant to Judge Williams' procedures, which are currently in effect in this case, the Court hereby notes that in light of its recommended disposition of Defendant's motion for summary judgment no. 3, (D.I. 178 ; D.I. 270 ), and Plaintiffs' motion for summary judgment no. 3, (D.I. 155 ; D.I. 278 ), and pursuant to the January 3, 2025 oral order, (D.I. 242 ), the Court does not plan to address Defendant's and Plaintiffs' remaining motions for summary judgment, (D.I. 154 ; D.I. 156 -57; D.I. 171 -77; D.I. 179 ; see D.I. 247 at 1). Ordered by Judge Christopher J. Burke on 03/27/2025. (sam) (Entered: 03/27/2025)
2025-03-27
1
Oral Order
2025-03-27
1
No Actions
Motions No Longer Referred
2025-03-27
1
No Actions
Motions No Longer Referred to Judge Christopher J. Burke: D.I. 154; D.I. 156-57; D.I. 171-77; D.I. 179; D.I. 243; D.I. 245. (sam)
2025-03-27
1
No Actions
ORAL ORDER: The Court has reviewed the parties' March 27, 2025 letter requesting a discovery dispute teleconference regarding one discovery dispute. (D.I. 276 ) It hereby ORDERS as follows with regard to this dispute: (1) By April 2, 2025, the parties shall jointly file one letter that is no more than two pages single-spaced in length, and which sets out each of their respective positions on the dispute.; (2) By April 2, 2025, the moving party shall file a Motion To Resolve Discovery Dispute.; (3) The parties should also consult and follow Judge Burke's "Guidelines for Discovery Disputes," which is found in the "Guidelines" tab on Judge Burke's portion of the District Court's website.; and (4) The Court will plan to resolve the dispute on the papers. Ordered by Judge Christopher J. Burke on 03/28/2025. (sam) (Entered: 03/28/2025)
2025-03-28
1
Oral Order
2025-03-28
1
No Actions
MOTION for Pro Hac Vice Appearance of Attorney J Curtis Edmondson - filed by SBH Holdings LLC. (Attachments: # 1 Exhibit Certificaton by Counsel to be admitted pro hac vice)Motions referred to Christopher J. Burke.(Brown, Glenn) (Entered: 03/31/2025)
2025-03-31
1
Pro Hac Vice Fee - Credit Card Payment received for J Curtis Edmondson. ( re 281 MOTION for Pro Hac Vice Appearance of Attorney J Curtis Edmondson )( Payment of $ 50, receipt number ADEDC-4650054).(Brown, Glenn) (Entered: 03/31/2025)
2025-03-31
1
ORAL ORDER: The Court, having reviewed Defendant's discovery dispute motion ("Motion"), (D.I. 265 ), via which Defendant seeks production of the settlement agreement and related documents from the case of Bausch & Lomb, Inc. v. PRN Physician Recommended Nutriceuticals, LLC, Civil Action No. 24-9256 (D.N.J.) (the "B&L v. PRN case"), including post-settlement documents and negotiation documents, and the briefing related thereto, (D.I. 258 ; D.I. 261 ; D.I. 263 ), hereby ORDERS that the Motion is GRANTED-IN-PART and DENIED-IN-PART for the reasons that follow: (1) With regard to Defendant's request for the settlement agreement relating to the B&L v. PRN case, Plaintiffs have now agreed to produce it. (D.I. 261 at 2) Defendant's request for the settlement agreement is therefore GRANTED. To the extent that it has not already been produced, Plaintiffs shall produce it by no later than April 2, 2025.; (2) With regard to Defendant's request for post-settlement documents relating to the B&L v. PRN case, there is now no dispute that no such documents exist. (D.I. 261 at 2; D.I. 263 at 1) Defendant's request for post settlement documents is therefore DENIED as MOOT.; and (3) With regard to Defendant's request for negotiation documents relating to the B&L v. PRN case settlement, Defendant's request is GRANTED-IN-PART and DENIED-IN-PART. Plaintiffs assert that the negotiation documents constitute an overbroad category of documents that is not relevant to the instant case. (D.I. 261 at 2) While the Court agrees with Plaintiffs that a request for "all" communications relating to settlement negotiations regarding the B&L v. PRN case seems overly broad (because, for example, the case involved claims for trademark infringement that have no relevance to the instant dispute), (see D.I. 261 at 1), Defendant notes that the negotiation documents could be relevant here in several specific respects. First, Defendant asserts that the same alleged patented components are in PRN's products as are in Defendant's products. (D.I. 263 at 1) Thus, to the extent that the negotiation documents discuss whether PRN's products infringe the asserted patents (including whether or to what extent the PRN products read on the claimed numerical ranges of the asserted claims), Defendant asserts that such discussion will shed light on what amount of certain components could be considered to be "reasonably close to" or "approximately" with respect to the asserted claims. (Id.) Second, Defendant asserts that the documents might address whether PRN was a non-infringing competitor and when its infringement began, which is relevant to the damages analysis here. (Id.) Third, to the extent the documents contain sales figures relating to the number of PRN products sold"back to 2018" and the dollar amount thereof, Defendant contends that such information is relevant to the amount of lost market share attributable to Defendant. (Id.) The Court agrees with Defendant that any negotiation documents that discuss these specific issues could be relevant to the instant case. The Court therefore GRANTS Defendant's request for negotiation documents relating to the B&L v. PRN case that relate to these specific issues (and DENIES the request in all other respects). See Kajeet, Inc. v. Qustodio, LLC, Case No. SA CV 18-1519-JAK (PLAx), 2019 WL 8060078, at *8 (C.D. Cal. Oct. 22, 2019) (granting a request for production of documents regarding plaintiff's underlying licensing/settlement negotiations involving the asserted patents, which reflected a determination of reasonable royalty amounts and/or valuations regarding any of the asserted patents, as nothing indicated that producing such a limited category of documents "would place a sizeable burden on plaintiff that outweighs the likely benefit to defendant"); Sciele Pharma, Inc. v. Lupin, Ltd., Civil No. 09-37 (RBK/JS), 2013 WL 12161442, at *4 (D. Del. Jan. 31, 2013) (adopting a "case-by-case approach" to the issue of whether negotiation documents regarding license agreements are discoverable in a given case, as such documents are generally less probative and more prejudicial than the licenses themselves, and granting a request for production of documents regarding plaintiff's underlying licensing/settlement negotiations with respect to certain agreements that involved issues "sufficiently similar to the issues in this case[,]" but denying the request as to documents relating to other agreements with only minimal relevancy). Plaintiffs shall produce any such documents by no later than April 4, 2025. Ordered by Judge Christopher J. Burke on 03/31/2025. (sam) (Entered: 03/31/2025)
2025-03-31
1
Order on Motion for Discovery
2025-03-31
1
No Actions
Order on Motion to Appear Pro Hac Vice
2025-03-31
1
No Actions
-District Court Pro Hac Vice Fee - 01 Attorney Credit Card Payment
2025-03-31
1
No Actions
SO ORDERED, D.I. 281 Motion for Pro Hac Vice Appearance of Attorney J Curtis Edmondson - filed by SBH Holdings LLC. Ordered by Judge Christopher J. Burke on 03/31/2025. (sam)
2025-03-31
1
No Actions
MOTION for Discovery Dispute to be Resolved - filed by SBH Holdings LLC. (Attachments: # 1 Certificate of Service Notice of Service)Motions referred to Christopher J. Burke.(Brown, Glenn) (Entered: 04/02/2025)
2025-04-02
1
[SEALED] Joint Letter to Judge Burke from Joint letter Brief regarding Joint Letter Breef Discovery Dispute 280 - re 284 MOTION for Discovery Dispute to be Resolved, 280 Oral Order,,,. (Attachments: # 1 Exhibit exhibit 1, # 2 Exhibit exhibit 2, # 3 Exhibit exhibit 3, # 4 Certificate of Service cos)(Brown, Glenn) (Entered: 04/02/2025)
2025-04-02
1
MEMORANDUM ORDER Denying Defendant's Motion to Strike and Motion to Stay. Signed by Judge Gregory B. Williams on 4/3/2025. (lnb) (Entered: 04/03/2025)
2025-04-03
1
MEMORANDUM ORDER Overruling re 266 Objections, filed by SBH Holdings LLC. Signed by Judge Gregory B. Williams on 4/3/2025. (lnb) (Entered: 04/03/2025)
2025-04-03
1
OBJECTIONS by SBH Holdings LLC to 278 REPORT AND RECOMMENDATIONS re 155 MOTION for Summary Judgment No. 3 of No Invalidity Under 35 U.S.C. § 112 and Broadening During Reexamination filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. Please note that whe . (Attachments: # 1 Exhibit Exhibits to Objections RE D.I. 278, # 2 Certificate of Service Certificate of service)(Brown, Glenn) (Entered: 04/03/2025)
2025-04-03
1
Pro Hac Vice Attorney Phillip J. Dutko for Bausch & Lomb Incorporated Bausch & Lomb Incorporated added for electronic noticing. Pursuant to Local Rule 83.5 (d)., Delaware counsel shall be the registered users of CM/ECF and shall be required to file all papers. (cdd)
2025-04-03
1
No Actions
Add Attorneys - PHV only
2025-04-03
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No Actions
RESPONSE TO OBJECTIONS by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC re 274 Objection to Report and Recommendations . (Fahnestock, Derek) (Entered: 04/04/2025)
2025-04-04
1
ORAL ORDER: The Court, having reviewed Defendant's discovery dispute motion ("Motion"), (D.I. 284 ), via which Defendant seeks production of the underlying documents pertaining to two spreadsheets (BAUSCH0122559 and BAUSCH0122560, or the "supplemental spreadsheets") produced by Plaintiffs on March 5, 2025, and the briefing related thereto, (D.I. 285 ), hereby ORDERS that the Motion is DENIED for the reasons that follow: (1) In February 2024, Plaintiffs served their damages expert Michael E. Tate's opening report (the "Tate opening report"), in which he: (a) explained that Plaintiffs "track[] market sales and share using various sources including IRI/Nielsen and National Consumer Panel data[;]" (b) identified the documents and excel spreadsheets (the "original spreadsheets") that he relied upon; and (c) estimated the market share of Plaintiffs' product for the time period from 2013 through 2023 based upon this information. (D.I. 195, ex. 11 at para. 31 & n.52); (2) On February 18, 2025, the Court granted Plaintiffs' motion seeking updated damages-related discovery, which permitted Plaintiffs to provide supplemental documents to show market share from 2022 through 2024, and also permitted the parties to serve supplemental expert reports to accommodate the updated information (the "February 2025 order"). (D.I. 224 at proposed order; D.I. 254 ); (3) Pursuant to the February 2025 order, Plaintiffs served a supplemental damages expert report from Mr. Tate that relied on the supplemental spreadsheets, which contained market share data in the same form as Mr. Tate had relied upon in the Tate opening report, but included more recent data. (D.I. 285 at 3; see also id., ex. 3 at ex. B at para. 31 & n.55 (citing BAUSCH0122559 and BAUSCH0122560)); (4) Importantly, after receiving the Tate opening report, Defendant never asked any questions about the original spreadsheets that Mr. Tate relied upon in that report, nor requested that any underlying documents relating to the original spreadsheets cited in the Tate opening report be produced. (D.I. 285 at 3) And Defendant's own damages expert cited to these original spreadsheets in his rebuttal report with no issue. (D.I. 167, ex. 29 at Schedule 2); (5) Defendant now seeks the underlying documents pertaining to the supplemental spreadsheets with trial just around the corner, scheduled to begin on April 21, 2025. (D.I. 241 ); and (6) Defendant offers no good reason why it never needed the underlying documents pertaining to the original spreadsheets (which relate to market share information over a 10-year timeframe), but now suddenly needs the underlying documents pertaining to the supplemental spreadsheets, especially at this very late juncture in the case. In light of these circumstances, it is simply too late for the Court to be ordering that new discovery be produced, and so Defendant's eleventh hour request must be denied. See, e.g., In re: Motor Fuel Temperature Sales Pracs. Litig., MLD No. 1840, 2012 WL 12548171, at *4 (D. Kan. July 12, 2012) (denying plaintiffs' request for updated sales and temperature data where "[p]laintiffs have provided no meaningful justification as to why they are only pursuing this information now, on the eve of a trial... and more than five months after they apparently became aware that this data was 'important' to their case"). Ordered by Judge Christopher J. Burke on 04/07/2025. (sam) (Entered: 04/07/2025)
2025-04-07
1
STIPULATION TO EXTEND TIME for the parties to file (i) proposed voir dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms to April 8, 2025 - filed by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 04/07/2025)
2025-04-07
1
Order on Motion for Discovery
2025-04-07
1
No Actions
[SEALED] STIPULATION and Order to Stay Deadlines by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 04/08/2025)
2025-04-08
1
[SEALED] SO ORDERED, re 292 Stipulation filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated. Signed by Judge Gregory B. Williams on 4/9/2025.This document will be emailed to local counsel. (lnb)
2025-04-09
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No Actions
SO ORDERED
2025-04-09
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No Actions
STIPULATION of Dismissal (with prejudice) - by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 04/10/2025)
2025-04-10
1
SO ORDERED, re 293 Stipulation of Dismissal filed by PF Consumer Healthcare 1 LLC, Bausch & Lomb Incorporated Signed by Judge Gregory B. Williams on 4/10/2025. (lnb) (Entered: 04/10/2025)
2025-04-10
1
Report to the Commissioner of Patents and Trademarks.(lnb) (Entered: 04/10/2025)
2025-04-10
1
REDACTED VERSION of 292 Stipulation by Bausch & Lomb Incorporated, PF Consumer Healthcare 1 LLC. (Fahnestock, Derek) (Entered: 04/10/2025)
2025-04-10
1
CASE CLOSED (lnb)
2025-04-10
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No Actions
Terminate Case - Civil
2025-04-10
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No Actions