Miller v. Facebook, Inc. et al

Filing 37

AMENDED COMPLAINT (First) against Facebook, Inc., Yao Wei Yeo. Filed byDaniel M. Miller. (Sperlein, D.) (Filed on 3/17/2010)

Miller v. Facebook, Inc. et al

Doc. 37 Att. 1

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Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA sf-2514670
Dockets.Justia.com

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ABBOTT DIABETES CARE, INC. and ABBOTT LABORATORIES, Plaintiffs/Counterdefendants, v. ROCHE DIAGNOSTICS CORP., ROCHE DIAGNOSTICS OPERATIONS, INC. and BAYER HEALTHCARE LLC, Defendants/Counterplaintiffs. _____________________________________ THERASENSE, INC., and ABBOTT LABORATORIES, Plaintiffs, v. NOVA BIOMEDICAL CORPORATION and BECTON, DICKINSON AND COMPANY, Defendants.

Case Nos. C05-03117 WHA C04-02123 WHA C04-03327 WHA C04-03732 WHA

BAYER AND BD/NOVA'S PROPOSED JOINT SPECIAL VERDICT FORM ON '551 ISSUES ­ PHASE I

Case 3:05-cv-03117-WHA

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Bayer, BD, and Nova respectfully submit their Proposed Special Verdict Form. This Special Verdict Form is limited to issues to be tried in a separate trial on the '551 patent against all parties on all issues. It separates the trial into three phases as suggested by the Court. Bayer, BD, and Nova reserve the right to propose additional and modified verdict forms as the issues to be tried are further framed by the parties and this Court.

Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

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1 2 3 1. 4 patent are obvious in light of the prior art? 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. III. 2. I.

Phase I OBVIOUSNESS

Did Defendants prove that it is highly probable that the asserted claims of the '551

Yes _______ (for Defendants) II.

No _______ (for Abbott)

WRITTEN DESCRIPTION

Did Defendants prove that it is highly probable that the specification of the '551

patent does not contain an adequate written description of the "without an intervening membrane or other whole blood filtering member" claim element? Yes _______ (for Defendants) No _______ (for Abbott)

INEQUITABLE CONDUCT

Did Defendants prove that it is highly probable that Dr. Sanghera or Mr. Pope or

both of them withheld material information with the intent to deceive the U.S. Patent Office during the prosecution of the '551 patent? Yes _______ (for Defendants) No _______ (for Abbott)

Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

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1 2 3 4 5 4.

IV.

PROSECUTION LACHES

Did Defendants prove that it is highly probable that Abbott and/or Medisense

unreasonably delayed in obtaining the '551 patent, and that one or more of the Defendants were prejudiced by Abbott and/or Medisense's delay? Yes _______ (for Defendants) No _______ (for Abbott)

6 7 8 9 10 11 Dated: ___________________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

WHEN YOU HAVE COMPLETED THIS VERDICT FORM, PLEASE HAVE THE FOREPERSON SIGN AND DATE IN THE SPACES INDICATED BELOW.

____________________________________ FOREPERSON

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Plaintiffs, 21 22 23 24 Defendants. 25 26 27 28
Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ABBOTT DIABETES CARE, INC. and ABBOTT LABORATORIES, Plaintiffs/Counterdefendants, v. ROCHE DIAGNOSTICS CORP., ROCHE DIAGNOSTICS OPERATIONS, INC. and BAYER HEALTHCARE LLC, Defendants/Counterplaintiffs. _______________________ THERASENSE, INC., and ABBOTT LABORATORIES, BAYER AND BD/NOVA'S PROPOSED JOINT SPECIAL VERDICT FORM ON '551 ISSUES ­ PHASE II Case Nos. C05-03117 WHA C04-02123 WHA C04-03327 WHA C04-03732 WHA

v. NOVA BIOMEDICAL CORPORATION and BECTON, DICKINSON AND COMPANY,

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1 Phase II 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

I. 1.

INFRINGEMENT - BAYER

Did Abbott prove that it is more likely than not that Bayer's blood glucose test

strips literally do not have a "membrane or other whole blood filtering member?" Autodisc: Microfill: 2. Yes____ (for Abbott) No____ (for Bayer) Yes____ (for Abbott) No____ (for Bayer)

Did Abbott prove that it is more likely than not that the first and second electrodes

in Bayer's blood glucose test strips are literally "not in electrical contact" before the blood is applied? Autodisc: Microfill: 3. Yes____ (for Abbott) No____ (for Bayer) Yes____ (for Abbott) No____ (for Bayer)

Did Abbott prove that it is more likely than not that Bayer's blood glucose test

strips have the substantial equivalent of a "reference counterelectrode"? Autodisc: Microfill: 4. Yes____ (for Abbott) No____ (for Bayer) Yes____ (for Abbott) No____ (for Bayer)

Did Abbott prove that it is more likely than not that Bayer's blood glucose test

strips have electrodes that can literally be "simultaneously completely covered" by a single drop of whole blood? Autodisc: Microfill: 5. Yes____ (for Abbott) No____ (for Bayer) Yes____ (for Abbott) No____ (for Bayer)

Did Abbott prove that it is more likely than not that every element of the asserted

claims of the `551 patent is included in Bayer's blood glucose test strips? Autodisc: Microfill: Yes____ (for Abbott) No____ (for Bayer) Yes____ (for Abbott) No____ (for Bayer)

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1 II. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

INFRINGEMENT - ROCHE

[Roche has submitted a separate proposed set of infringement instructions entitled "ROCHE DIAGNOSTICS OPERATIONS, INC. AND ROCHE DIAGNOSTICS CORPORATION'S PROPOSED VERDICT FORM FOR PROPOSED PHASE II ­ INFRINGEMENT OF THE `551 PATENT AND FOR ALL ISSUES CONCERNING THE `745 PATENT"]

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. 9. 8. 7. 6.

III. INFRINGEMENT ­ BD AND NOVA Did Abbott prove that it is more likely than not that BD and Nova's blood glucose

test strips literally do not have a "membrane or other whole blood filtering member?" BDTM Test Strips: Yes____ (for Abbott) No____ (for BD and Nova)

Did Abbott prove that it is more likely than not that the first and second electrodes

in BD and Nova's blood glucose test strips are literally "not in electrical contact" before the blood is applied? BDTM Test Strips: Yes____ (for Abbott) No____ (for BD and Nova)

Did Abbott prove that it is more likely than not that BD and Nova's blood glucose

test strips have the substantial equivalent of a "reference counterelectrode"? BDTM Test Strips: Yes____ (for Abbott) No____ (for BD and Nova)

Did Abbott prove that it is more likely than not that BD and Nova's blood glucose

test strips have electrodes that can literally be "simultaneously completely covered" by a single drop of whole blood? BDTM Test Strips: Yes____ (for Abbott) No____ (for BD and Nova)

Did Abbott prove that it is more likely than not that every element of the asserted

claims of the `551 patent is included in BD and Nova's blood glucose test strips? BDTM Test Strips: Yes____ (for Abbott) No____ (for BD and Nova)

Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

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1 2 3 4 5 6 10.

IV.

ESTOPPEL - BAYER

Did Bayer prove that it is highly probable that Abbott unreasonably delayed in

asserting the '551 patent against Bayer, that Bayer was prejudiced by Abbott's delay, that Abbott induced Bayer to believe that it had abandoned its claim, and that Bayer relied on that belief to its detriment? Yes _______ (for Bayer) No _______ (for Abbott)

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

V. 11.

ESTOPPEL - ROCHE

Did Roche prove that it is highly probable that Abbott unreasonably delayed in

asserting the '551 patent against Roche , that Roche was prejudiced by Abbott's delay, that Abbott induced Roche to believe that it had abandoned its claim, and that Roche relied on that belief to its detriment? Yes _______ (for Roche) No _______ (for Abbott)

WHEN YOU HAVE COMPLETED THIS VERDICT FORM, PLEASE HAVE THE FOREPERSON SIGN AND DATE IN THE SPACES INDICATED BELOW.

Dated: ___________________

____________________________________ FOREPERSON

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1 2 3 4 5 6 7 8 9 10 11 12 13 Plaintiffs/Counterdefendants, 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ABBOTT DIABETES CARE, INC. and ABBOTT LABORATORIES,

Case Nos. C05-03117 WHA C04-02123 WHA C04-03327 WHA C04-03732 WHA

v. ROCHE DIAGNOSTICS CORP., ROCHE DIAGNOSTICS OPERATIONS, INC. and BAYER HEALTHCARE LLC, Defendants/Counterplaintiffs. _______________________ THERASENSE, INC., and ABBOTT LABORATORIES, Plaintiffs, v. NOVA BIOMEDICAL CORPORATION and BECTON, DICKINSON AND COMPANY, Defendants. BAYER AND BD/NOVA'S PROPOSED JOINT SPECIAL VERDICT FORM ON '551 ISSUES ­ PHASE III

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. 1.

Phase III [TO BE REVISED DEPENDING ON WHICH PRODUCTS ARE FOUND TO BE INFRINGING] I. MARKING

Did Abbott prove that Abbott and its licensees marked substantially all Abbott

Precision Xtra, Precision QID, Precision PCx, Relion, ExacTech, ExacTech RSG, and LifeScan FastTake products containing test strips with the number of the '551 patent prior to the filing of this lawsuit? Yes _______ (for Abbott) No _______ (for Defendants)

If your answer to Question 1 is Yes, identify the date on which Abbott and its

licensees started marking substantially all of Abbott Precision Xtra, Precision QID, Precision PCx, Relion, ExacTech, ExacTech RSG, and LifeScan FastTake products containing test strips with the number of the '551 patent: ________________________.

Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

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II.

DAMAGES - BAYER

What amount of lost profits damage, if any, has Abbott proven by a preponderance

of evidence to a reasonable certainty, resulting from Bayer's sale of Autodisc products between May 16, 2006 and September 17, 2007? ___________________________ 4. What is the reasonable royalty (in dollars) that Abbott proved Bayer should pay on

sales of Autodisc products between May 16, 2006 and September 17, 2007 for which you did not award lost profits? ______________________________________ 5. What amount of lost profits damage, if any, has Abbott proven by a preponderance

of evidence to a reasonable certainty, resulting from Bayer's sale of Microfill starting on the earlier of (1) the date, if any, that you wrote in response to Question 2, or (2) August 1, 2005, and ending on December 31, 2006? ___________________________________ 6. What is the reasonable royalty (in dollars) that Abbott proved Bayer should pay on

sales of Microfill starting on the earlier of (1) the date, if any, that you wrote in response to Question 2, or (2) August 1, 2005, and ending on December 31, 2006 for which you did not award lost profits? ___________________________________

Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

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III.

DAMAGES - ROCHE

What amount of lost profits damage, if any, has Abbott proven by a preponderance

of evidence to a reasonable certainty, resulting from Roche's sale of ACCU-CHEKŪ Comfort Curve products between May 16, 2006 and September 17, 2007?_______________________ 8. What is the reasonable royalty (in dollars) that Abbott proved Roche should pay on

sales of ACCU-CHEKŪ Comfort Curve products between May 16, 2006 and September 17, 2007 for which you did not award lost profits?__________________________ 9. What amount of lost profits damage, if any, has Abbott proven by a preponderance

of evidence to a reasonable certainty, resulting from Roche's sale of ACCU-CHEKŪ Aviva between August 1, 2005, and September 17, 2007? ___________________________________ 10. What is the reasonable royalty (in dollars) that Abbott proved Roche should pay on

Roche's sale of ACCU-CHEKŪ Aviva between August 1, 2005, and September 17, 2007 for which you did not award lost profits? ___________________________________

Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

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IV.

DAMAGES ­ BD AND NOVA

What amount of lost profits damage, if any, has Abbott proven by a preponderance

of evidence to a reasonable certainty, resulting from sales of BDTM Test Strips starting on the earlier of (1) the date, if any, that you wrote in response to Question 2, or (2) March 4, 2005, and ending on September 30, 2006? ___________________________ 12. What is the reasonable royalty (in dollars) that Abbott proved BD and Nova should

pay on sales of BDTM Test Strips starting on the earlier of (1) the date, if any, that you wrote in response to Question 2, or (2) March 4, 2005, and ending September 30, 2006 for which you did not award lost profits? ______________________________________

Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

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V.

WILLFULNESS - BAYER

Did Abbott prove that it is highly probable from an objective point of view that the

defenses put forth by Bayer failed to raise a substantial question with regard to validity, infringement, or enforceability of the '551 patent? Yes _______ (for Abbott) No _______ (for Bayer)

If you answered Yes to question 13, then did Abbott prove that it is highly

probable that Bayer actually knew, or it was so obvious that Bayer should have known, that its actions constituted infringement of a valid and enforceable patent? Yes _______ (for Abbott) No _______ (for Bayer)

Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

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VI.

WILLFULNESS - ROCHE

Did Abbott prove that it is highly probable from an objective point of view that the

defenses put forth by Roche failed to raise a substantial question with regard to validity, infringement, or enforceability of the '551 patent? Yes _______ (for Abbott) No _______ (for Roche)

If you answered Yes to question 15, then did Abbott prove that it is highly

probable that Roche actually knew, or it was so obvious that Roche should have known, that its actions constituted infringement of a valid and enforceable patent? Yes _______ (for Abbott) No _______ (for Roche)

Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

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VII.

WILLFULNESS ­ BD AND NOVA

Did Abbott prove that it is highly probable from an objective point of view that the

defenses put forth by BD failed to raise a substantial question with regard to validity, infringement, or enforceability of the '551 patent? Yes _______ (for Abbott) No _______ (for BD)

6 7 8 9 10

18.

If you answered Yes to question 17, then did Abbott prove that it is highly

probable that BD actually knew, or it was so obvious that BD should have known, that its actions constituted infringement of a valid and enforceable patent? Yes _______ (for Abbott) 19. No _______ (for BD)

Did Abbott prove that it is highly probable from an objective point of view that the

11 defenses put forth by Nova failed to raise a substantial question with regard to validity, 12 infringement, or enforceability of the '551 patent? 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Bayer and BD/Nova's Proposed Special Verdict Form Case No. C05-03117 WHA; Case No. C04-02123 WHA; Case No. C04-03327 WHA; Case No. C04-03732 WHA

Yes _______ (for Abbott) 20.

No _______ (for Nova)

If you answered Yes to question 19, then did Abbott prove that it is highly

probable that Nova actually knew, or it was so obvious that Nova should have known, that its actions constituted infringement of a valid and enforceable patent? Yes _______ (for Abbott) No _______ (for Nova)

WHEN YOU HAVE COMPLETED THIS VERDICT FORM, PLEASE HAVE THE FOREPERSON SIGN AND DATE IN THE SPACES INDICATED BELOW.

Dated: ___________________

____________________________________ FOREPERSON

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