Federal Judiciary

Iovate v. BSN nears trial

By Michael Smith

Iovate v. BSN, 9:07-CV-46 (E.D. Tex. 1/31/08)
Judge: Ron Clark
Holding: Various Pretrial Rulings
I have been following this case on nutritional supplements all year for some reason, despite the fact that Judge Clark granted my client's motion to dismiss for improper venue letting them out of the case early this spring.  The case is getting ready for trial with final pretrial this week and jury selection next week, and orders have started rolling out of Judge Clark's chambers, and I thought it might be of interest to readers to see what the run-up to trial looks like.
Back on August 7, Judge Clark granted a motion striking one of the defendant's amended invalidity contentions (a motion for reconsideration was later denied, and a prior similar ruling came out in June).  The rest of the month was filling with a mass of filings on motions in limine and summary judgment filings, as well as the pretrial order and the parties' proposed charges.  On that date he also granted summary judgment as to the defendant's unfair competition counterclaims.
Then, on August 27 more orders started rolling out.  First, Judge Clark entered an order denying the plaintiff's Daubert motion to preclude certain invalidity opinions by the defendant's expert witnesses and denying the plaintiff's Motion to Strike BSN's untimely supplemental expert report.  Second was an order granting in part Defendant BSN's motion for summary judgment on invalidity. Briefly, Judge Clark held that because BSN had demonstrated by clear and convincing evidence that claims 1, 2, 5, 7, 8, 9, and 18 of the ?287 patent are invalid under 35 U.S.C. § 102 as anticipated by the Flex Magazine advertisements of the Twin Labs MassFuel and Weider Professional Protein products, he granted summary judgment as to those claims. But because a genuine issue of material fact remains with respect to claims 10 and 12 of the ?287 patent and claim 1 of the ?199 patent, the court denied the motion for summary judgment as to these claims.  Third was a revised order on trial time, in which the court allocated 12 hours to the plaintiff and 7 hours to each of the two defendants to try the three remaining claims in this case.  On Friday a couple of other orders came out denying motions to strike part of one of the plaintiff's expert's reports.
I look forward to seeing how things come out next week

Full post as published by Eastern District of Texas Federal Court Practice on September 03, 2008 (boomark / email).