Ambit Corp. is suing Delta Airlines for infringement of Patent No. 7,400,858. In a previous ruling (see http://bostonipblog.typepad.com/dmass-ip-blog/2010/01/moving-defendant-now-facing-summary-judgment-of-nonobviousness.html) Judge Young denied Delta’s motion for summary judgment of obviousness and found the submissions so wanting that he ordered briefing on why he shouldn’t enter summary judgment that the patent was not obvious.
The briefing was filed, along with “a new voluminous expert declaration and numerous exhibits” submitted by Delta. Judge Young refused to consider these new materials as they violated the discovery deadline. After reviewing the briefs and original evidentiary submissions, however, Judge Young ruled that there was a sufficient enough factual question to preclude summary judgment of non-obviousness.
On page 8 of the opinion Judge Young notes that “summary judgment practice in patent cases is out of control.” In a couple of paragraphs he expresses the frustration that many district judges must feel with patent cases and the avalanche of paper that accompanies them. Its result notwithstanding, let this case serve as a warning to counsel that “it behooves them to lay every bit of evidence before the court” during summary judgment, lest the court sua sponte, flip the case and enter judgment against the movement.
Ambit Corp. v. Delta Air Lines, Inc., 09-10217-WGY (D.
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