After several reexaminations, trial is approaching on a patent suit involving laser catheter systems. The parties filed cross-motions on various points, some of which were allowed. The opinion is an interesting read, if for no other reason than to confirm that judges really don’t like it when briefs make overwrought arguments or repeat arguments previously made and disposed of. Such as the defendants here, who Judge Gorton called out for seeking a “ninth bite at the apple.”
Even potentially meritorious arguments, such as a laches defense (which the court noted “was the only [equitable defense] which merits extended discussion”) suffered due to defendant’s tactics. The motion for summary judgment of laches was denied despite several mutli-year gaps prior to suit. The court held against the defendant its motions for stay pending reexamination as well as its tendency to overstate facts and undersupport arguments.
Fun practice tip from Judge Gorton: “Defendant should be made aware that hyperbolic statements and frequent capitalization, bolding and underlining throughout its briefs have the opposite of their intended effect.” So there you go.
Cardiofocus, Inc. v. Cardiogenesis Corp., 08-10285-NMG (April 19, 2012)