Intellectual Property Law

Judge Thynge Denies Defendant's Motion to Trifurcate Infringement, Damages, and Anti-Trust Issues

By Karen E. Keller, Andrew A. Lundgren et al.

Recently, Judge Thynge issued a memorandum order on a motion to bifurcate in Masimo Corp. v. Philips Elec. North Am. Corp., C.A. No. 09-80-LPS-MPT (D. Del. Oct. 6, 2010). Judge Thynge previously granted Plaintiff's motion to bifurcate Defendant's anti-trust and patent misuse counterclaims. Now, Defendant moved to trifurcate the trial into separate sections for invalidity/infringement, anti-trust issues, and damages -- or, in the alternative, to bifurcate the case into invalidity/infringement and damages/anti-trust. Judge Thynge rejected both alternatives, holding that the usual issues of judicial economy, prejudice, and juror comprehension weighed in favor of trying invalidity, infringement and damages together.

The extent to which the previous bifurcation affected Judge Thynge's decision is unclear. The previous bifucation is discussed in the order, but not as one of the factors cutting against further bifurcation. On the other hand, judicial economy was a big factor weighing against further bifucation, including the overlap of evidence between damages and infringement, and Defendant's low likelihood of success at proving non-infringement or invalidity. This stands in contrast with Judge Robinson, who usually grants bifurcation in the interest of judicial economy.

In any case, Judge Thynge included a footnote leaving the door open, at least, to a stay on the presentation of damages evidence at trial until the jury renders a verdict on liability.

Masimo Corp. v. Philips Elec. North Am. Corp., C.A. No. 09-80-LPS-MPT (D. Del. Oct. 6, 2010)

Full post as published by Delaware IP Law Blog on November 10, 2010 (boomark / email).