Monday, February 27, 2012

Litigants -- pick your battles wisely; Rube Goldberg's Self-Operating Napkin more interesting than sanctions motion

PPS Data sued Athenahealth for patent infringement.  Athenahealth thought PPS didn't do a thorough enough pre-suit investigation, and filed a Rule 11 motion seeking sanctions.  PPS responded that it investigated the accused product and reasonably believed it read on the claims.  In responding to Athenahealth's sanction motion, PPS made a   request for "counter-sanctions" against Athenahealth and its counsel for filing a "frivolous" Rule 11 motion.  Athenahealth, of course, responded.  PPS next filed a motion to strike a paragraph from that response, to which Athenahealth filed another response.  You can imagine how pleased the Court was to receive this barrage.

First, the Court dispensed with the law.  An adequate pre-suit investigation in a patent case requires a plaintiff to: (1) investigate the legal basis of the patent infringement claims (i.e. interpret the claims to be at issue); and (2) conduct a comparison of the accused product and the asserted claim(2).  

Here, neither party presented the Court with Plaintiff's pre-suit claim interpretation -- thus the Court could only conclude that such construction was reasonable.  As to the comparison of the accused product, PPS relied on Athenahealth's public statements about its products.  Athenahealth challenged this with the affidavit testimony of its managing director.  This was not persuasive.  As my trial advocacy professor often stated, "that goes to the weight, not admissibility."  The Court saw things the same way: 
To the extent that affidavit can be seen as a repudiation of Defendant's public statements about its product, the affidavit may call into question the accuracy of those statements or, perhaps, the credibility of the managing director.  It does not, however, cast doubt on the reasonableness of Plaintiff's reliance on Defendant's public statements.
Having now denied Athenahealth's sanctions motion, the Court addressed the various briefings.  I see no reason to try to improve on the Court's language, so I quote it below:
Putting to one side the original motion for sanctions, the Court must now turn to several papers that related to Defendant's motion in a Rube Goldberg-like manner. [FN - The Official Rube Goldberg Website]
* * *
All-in-all, the Court finds Rube Goldberg's cartoon of a Self-Operating Napkin more entertaining than the Rube Goldberg-like web of papers submitted in this case.  Although both parties have likely spent a great deal of time and money preparing these submissions, neither party has benefitted.  The Court has spent too much time addressing them.  For future submissions, counsel should note that this Court, like the U.S. Court of Appeals for the Seventh Circuit, "is not inclined to award sanctions in favor of a party that cannot be bothered to follow the rules itself."  Heinen v. Northrop Grumman Corp., 2012 WL 372988, at *2 (7th Cir. Feb. 7, 2012).
Furthermore, as this case remains in its early stages, counsel are advised that the effect of launching a litigation nuclear arsenal directed at peripheral issues not genuinely intended to advance the case toward resolution in an efficient, meaningful way will greatly diminish the credit given by the Court to future filings.  Choose your battles wisely lest the early salvos cost you the war.
Motion for sanctions denied.

PPS Data, LLC v. Athenahealth, Inc., Case No. 3:11-cv-746 (M.D. Fla. Feb. 23, 2012) (J. Dalton, Jr.)

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