D. Mass. Patent Litigation Update: February 2023

This is part of a series of articles discussing recent orders of interest issued in patent cases by the United States District Court for the District of Massachusetts.

In Cosy Inc. v. Dorel Juvenile Group, Inc., No. 21-cv-10134, Magistrate Judge Dein granted the plaintiff’s motion for partial reconsideration on claim construction. The Court previously construed “airbag” to mean “a single, vented, deflatable chamber” and the plaintiff disputed the restriction to a “single” chamber.

On reconsideration, the Court found that the claim language was not restricted to a single chamber. The Court now held that the patent applicant had not clearly disclaimed embodiments with multiple chambers during prosecution and thus no surrender of claim scope occurred. In particular, the Court observed that during prosecution the applicant responded to a question regarding a 2-chamber airbag by conflating the term “air bag” with the term “sacrificial chamber” recited in a dependent claim In the context of the patents-at-issue, the parties agreed that “air bag” and “sacrificial chamber” should be construed separately. Therefore, the Court held that any disclaimer regarding the term “sacrificial chamber” did not impact the term “airbag.”

Thus, the Court found that if the terms “airbag” and “sacrificial chamber” are decoupled, the statement during prosecution does not constitute a “clear and unmistakable disclaimer” and accordingly adjusted its construction of the term “airbag” to “vented, deflatable chamber.”

In Cosy Inc. v. Dorel Juvenile Group, Inc., No. 21-cv-10134, Magistrate Judge Dein issued rulings on the plaintiff’s motions related to discovery disputes.

First, the Court denied the plaintiff’s motion for leave to serve supplemental infringement contentions. Rejecting the plaintiff’s argument that “good cause exists whenever a court’s claim construction differs from the construction proposed by a party,” the Court found that the plaintiff had failed to establish good cause by explaining why the “claim construction order require[d] changes to its infringement contentions.” The Court also found that the defendant would suffer undue prejudice because the plaintiff’s amendments to the infringement contentions after fact discovery was closed would disrupt the defendant’s preparation of expert disclosures and incur further costs. Accordingly, the Court denied the plaintiff’s motion for leave to serve supplemental infringement contentions.

Second, the Court granted in part and denied in part the plaintiff’s motion to compel damages information, ordering the plaintiff to identify at most four unaccused but allegedly related products for which the defendant was ordered to produce financial data for a period before the 6-year statute of limitations.

Third, the Court denied the plaintiff’s motion to preclude testimony from the defendant’s corporate designee who the plaintiff said was untimely disclosed. The Court instead set out an expedited schedule for initial disclosures, document production, and deposition of the corporate designee.

In Kologik Capital, LLC v. In Force Technology, LLC, No. 18-cv-11168, Magistrate Judge Levenson denied all pending motions to seal without prejudice to re-filing a new motion with a showing of “good cause” pursuant to Rule 26(c)(1). The Court emphasized that the showing of “good cause” would require particularized identification of “only those portions of documents for which there are substantial privacy interests . . ., trade secrets, or other confidential business information.”

In Attabotics, Inc. v. URBX, Inc., No. 21-cv-11051, Judge Burroughs denied the plaintiff’s motion for default where the defendant, although having passed the deadline to obtain new counsel, had counsel enter an appearance one day after the plaintiff filed its motion, and then an opposition one further day later.