Abstrax, Inc. v. Dell, Inc. et al, 2:07cv00221)(E.D. Tex., Sept. 11, 2009)
Judge: Chad Everingham
Holding: Motion for Summary Judgment of No Willful Infringement & Invalidity Recommended DENIED
The day after granting the defendants' motions for summary judgment as to the plaintiffs' willfulness claims in Crane v. Sandenvendo America, Judge Everingham found that another defendant had not met its burden to show the absence of a genuine issue of material fact on the same issue and recommended denying defendant's motion for summary judgment of no willful infringement. Although the defendant contended that it had substantial defenses to infringement, and its invalidity case was strong enough to withstand a finding of willful infringement, plus that anyone investigating the patent during the time of the alleged infringement would have determined that the maintenance fees had not been paid, the patent had been abandoned, and any revival of the patent was ineffective. However, "the undersigned is not persuaded that summary judgment is appropriate. Evaluation of the relative merits of the infringement and validity issues is best suited for a fully developed trial record."Judge Everingham also recommended denying defendant's motion for summary judgment of invalidity based on the argument that the asserted patent claimed unpatentable subject matter under In re Bilski, 545 F.3d 943 (Fed. Cir. 2008).