By Dennis Crouch
Semcon Tech LLC v. Micron Tech (D. Del. 2014)
A few days ago Judge Richard Andrews wrote the following order in this case:
The request for oral arguments is denied. Micron’s position is meritless, and I am surprised that micron’s distinguished Delaware counsel did not talk lead counsel out of its opposition to the motion.
[Order Lifting Stay]. Semcon’s case against Micron involves the chemical-mechanical polishing and planarization used in semiconductor wafer manufacturing. U.S. Patent No. 7,156,717. Earlier in the litigation, the parties in the action agreed to a stay of the litigation pending outcome of parallel cases involving the same patent against Applied Materials. In December 2013 that case was voluntarily dismissed as part of a settlement agreement between Semcon and Applied Materials. Semcon then repeatedly sought to meet and confer with Micron’s opposing counsel from Weil Gotshal regarding re-opening of the case, and then eventually filed a motion to lift the stay.
In its opposition to the motion, Micron‘s attorneys argued that the stay should never be lifted and never be reopened. That tidy conclusion was a simple matter of logic: (1) The stay order set in place by Judge Andrews stated that it would be in place “until such time as a final, non-appealable judgment is entered in the Semcon v. Applied Materials Suit.” And, (2) no final judgment was entered in the Applied Materials case but rather the case was merely subject to a voluntary dismissal without prejudice by Semcon. According to Micron’s attorneys, for the stay to be lifted, Semcon must re-file its lawsuit against Applied Materials and litigate that case “to a final, nonappealable judgment. . . . Until that occurs, however, the stay should remain in place to preserve efficiency and economy.”
Of course, the court saw Micron’s argument as too clever and has ordered the case reopened. I suspect that Semcon will next move for some amount of Rule 11 fees.
Micron has an interesting reputation in the patent sphere. In 2011, the company stopped hiring University of Illinois engineers because the university had sued Micron for patent infringement. The company also has an (apparently) ongoing back-end deal with Round Rock to enforce more than 1,000 of its patents.
A few days ago, I wrote about defendants behaving badly and whether there are clear examples of that occurring. Although admittedly biased, patent plaintiff IP Nav (Erich Spangenberg) has an put together an interesting essay on the topic of fee shifting. See Patent Lawsuit Defendants Behaving Badly. The essay explains why IP Nav can be happy with a fee shifting rule – as long as it is balanced so that he can collect fees against defendants who engage in willful infringement, make meritless arguments in court, and needlessly drag-out litigation. The essay also highlights a few examples such as Takeda Chemical v. Mylan Laboratories (attorney fee award of $16.8 million to the patentee Takeda because Mylan’s obviousness argument was “so devoid of merit and so completely fail[ed] to establish a prima facie case of invalidity that it must be described as `baseless.’”) and Beckman Instruments, Inc. V. Lkb Produkter Ab. (Attorney fees for the patentee Beckman for defendant’s vexatious litigation).
On Wednesday of this week, the Supreme Court will be hearing oral arguments in the two pending fee shifting cases Highmark and Octane Fitness.