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  • CAFC finds that CD Cal  failed to provide a “full and fair opportunity to ventilate the issues.”
    in: 未分類  | 

    CAFC finds that CD Cal failed to provide a “full and fair opportunity to ventilate the issues.”

    The opinion begins


    Defendant Zinus, Inc., appeals from a summary
    judgment entered in favor of plaintiff Cap Export, LLC,
    and third-party defendants Abraham Amouyal and
    4Moda Corp. (collectively, “Cap Export”) by the United
    States District Court for the Central District of California.
    The district court ordered Zinus, the owner of U.S. Patent
    No. 8,931,123 (“the ’123 patent”), to file a motion for
    summary judgment of validity of that patent. Following
    briefing, the court held two of the asserted claims of
    Zinus’s patent invalid for obviousness. The court then
    dismissed all of Zinus’s counterclaims with prejudice. We
    vacate the district court’s summary judgment and remand
    for further proceedings.

    Of the issues leading to decision to vacate:


    On appeal, Zinus raises a number of objections to the
    district court’s summary judgment ruling. Three of
    Zinus’s arguments are persuasive.

    First, the district court improperly granted summary
    judgment for Cap Export sua sponte, without proper
    notice to Zinus. “It is well established that a district court
    has ‘the power to enter summary judgment[] sua sponte,
    so long as the losing party was on notice that she had to
    come forward with all of her evidence.’” Mikkelsen Graphic
    Eng’g, Inc. v. Zund Am., Inc., 541 F. App’x 964, 972
    (Fed. Cir. 2013) (quoting Celotex Corp. v. Catrett, 477 U.S.
    317, 326 (1986)); see also Albino v. Baca, 747 F.3d 1162,
    1176 (9th Cir. 2014) (“Even when there has been no crossmotion
    for summary judgment, a district court may enter
    summary judgment sua sponte against a moving party if
    the losing party has had a full and fair opportunity to
    ventilate the issues involved in the matter.”). Rule 56(f)
    of the Federal Rules of Civil Procedure provides that
    district courts may grant summary judgment for a nonmovant
    only after “giving notice and a reasonable time to
    respond.” See Mikkelsen, 541 F. App’x at 972–73.

    AND


    When it ordered Zinus to make a motion for summary
    judgment of validity, the district court provided no notice
    that the court was contemplating entering summary
    judgment of invalidity. Normally, if a patent holder were
    to lose a motion for summary judgment of validity, the
    result would be a trial, not a judgment of invalidity. In
    fact, because a patent carries a presumption of validity
    and a challenger must prove invalidity by clear and
    convincing evidence, a patentee need not present any
    factual evidence to prevail on a motion for summary
    judgment of validity. Massey v. Del Labs., Inc., 118 F.3d
    1568, 1573 (Fed. Cir. 1997). The district court gave no
    notice that it might grant summary judgment against
    Zinus.
    Furthermore, Zinus lacked a “full and fair opportunity
    to ventilate the issues.” Gospel Missions of Am. v. City of
    Los Angeles, 328 F.3d 548, 553 (9th Cir. 2003). Because of
    the unusual sequence of briefs and evidence, Zinus did not
    have an opportunity to depose Cap Export’s expert, whose
    declaration was first presented as part of Cap Export’s
    sur-reply filed on November 11, 2016. Nevertheless, the
    district court relied on the expert’s testimony and found it
    “credible.” Zinus was also denied an opportunity to
    present evidence of objective indicia of nonobviousness,
    which could have supported its position that the claims of
    the ’123 patent were not obvious. See, e.g., Cheese Sys.,
    Inc. v. Tetra Pak Cheese & Powder Sys., Inc., 725 F.3d
    1341, 1353 (Fed. Cir. 2013). Although Zinus stated in its
    reply brief in support of its motion for summary judgment
    of validity that it was not “at this time asking the Court to
    consider any objective evidence of nonobviousness,” Zinus
    was entitled to present evidence of nonobviousness,
    including objective evidence of nonobviousness, in defending
    against a motion for summary judgment of invalidity.
    Under these circumstances, Zinus lacked both notice
    that the district court would enter summary judgment of
    invalidity sua sponte and an opportunity to present evidence
    and argument as to why summary judgment should
    not be entered against it. Accordingly, the district court’s
    entry of summary judgment in Cap Export’s favor was
    procedurally improper.

    Of the second point

    As neither party raised arguments regarding the validity of
    claim 2, the district court erred in dismissing that claim
    with prejudice. In addition, although a district court may
    decline to exercise supplemental jurisdiction over state
    law claims after dismissing federal claims pursuant to 28
    U.S.C. § 1367(c)(3), any such dismissal must be without
    prejudice. Davila v. Smith, 684 F. App’x 637, 638 (9th
    Cir. 2017) (citing Gini v. Las Vegas Metro. Police Dep’t, 40
    F.3d 1041, 1046 (9th Cir. 1994)). Accordingly, the district
    court erred in dismissing claim 2 of the ’123 patent and
    Zinus’s state law claims with prejudice.

    Of the third point


    Third, the district court improperly relied on the “bed
    in a box” prior art reference despite a factual dispute
    regarding whether the reference predated the ’123 patent.
    Cap Export alluded to the “Amazing Bed in a Box” website
    only in its April 2016 letter to Zinus’s counsel; it did
    not assert the website as prior art in any of its briefs to
    the district court in connection with Zinus’s motion for
    summary judgment of validity. In its opening brief on
    that motion, Zinus argued that the website does not
    predate the priority date of the ’123 patent, which is
    September 25, 2013, because the website appears to have
    been posted in November 2014.2 It appears that Cap
    Export may have abandoned the reference altogether, as
    Cap Export did not address that reference in its opposition
    brief before the district court. See Shakur v. Schriro,
    514 F.3d 878, 892 (9th Cir. 2008) (holding that a party
    abandons claims by not defending them in opposition to a
    motion for summary judgment); Stichting Pensioenfonds
    ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125,
    1132 (C.D. Cal. 2011) (“[I]n most circumstances, failure to
    respond in an opposition brief to an argument put forward
    in an opening brief constitutes waiver or abandonment in
    regard to the uncontested issue.”).
    Nevertheless, the district court relied on that reference
    in concluding that claims 1 and 3 would have been
    obvious. The court explained that “someone with ordinary
    skill in the art would view the Tiffany Bed (with a
    headboard compartment), the Aspelund bed (with legs
    attached to the footboard), and the Bed in a Box (where
    all pieces of the bed fit in one compartment), and combine
    these references . . . .” At best, the disputed fact regarding
    the publication date of the “bed in a box” reference
    precludes reliance on that reference for purposes of summary
    judgment. See Tennison v. City & Cty. of San
    Francisco, 570 F.3d 1078, 1087 (9th Cir. 2009); Lamle v.
    Mattel, Inc., 65 F. App’x 293, 295 (Fed. Cir. 2003).

  • Stryker Seeks Intellectual Property Manager for Mahwah, NJ
    in: Attorneys, Bioengineering, Biomedical Engineering, intellectual property jobs, ip jobs, IP News, IPWatchdog Articles, IPWatchdog JobOrtunities™ Help Wanted, IPWatchdog.com Articles, job, Job Board, Job Board 2.0, jobs, Law Firms, Mechanical Engineering, patent jobs, People, Press Releases, Stryker  | 

    Stryker Seeks Intellectual Property Manager for Mahwah, NJ

    Stryker is seeking an intellectual property manager for it’s Mahwah, NJ Location.  The Stryker IP Manager will provide IP support for the Spine and Joint Replacement Divisions. These are fast paced environments with a focus on innovation and strategy. The IP Manager will be responsible for managing the full patent lifecycle including: preliminary patentability assessments, liaise with outside counsel on the drafting of applications and leading efforts for the maintenance/annuity payment…