Following briefing to Magistrate Judge Dein as well as briefing on objections to her conclusions, Judge Gertner adopted the Report and Recommendations dismissing two claims, one alleging misleading the PTO, the other alleging conspiracy to monopolize.
This case stems from an infringement suit involving Patent No. 7,301,156, originally brought by Varian. In that suit Advanced Ion asserted a number of antitrust counterclaims which were dismissed without prejudice for insufficient pleading. [See here for a discussion of a cost award in that case.] Instead of moving to re-plead its counterclaims, Advanced Ion chose to file them in this separate action asserting (in more detailed pleading) Walker Process claims, sham litigation claims for monopolization, and conspiracy to monopolize.
Following another motion to dismiss Magistrate Judge Dein recommended dismissing claims relying on fraud before the PTO regarding one set of (mis-)representations but not dismissing claims relying on a second set of omissions. The lengthy opinion is detailed and very fact specific, but carefully walks through the alleged facts and weighs them against the appropriate pleading requirements, including those heightened by Rule 9(b).
Advanced Ion Beam Tech., Inc. v. Varian Semiconductor Equipment Assoc., Inc., 09-11448-NG-JGD (D. Mass. July 2, 2010)