Viskase Companies, Inc. v. World Pac International AG et al

Filing 485

WRITTEN Opinion entered by the Honorable Elaine E. Bucklo on 5/23/2011: Mailed notice(mpj, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Elaine E. Bucklo

CASE NUMBER

09 C 5022

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

5/23/2011

Viskase vs. World Pac, et al.

DOCKET ENTRY TEXT

Viskase’s motion for an order to show cause for post-judgment violation
of protective order is denied.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT

Viskase’s motion for an order to show cause for post-judgment violation of
protective order is denied. Viskase asserts that World Pac violated the
“prosecution ban” in the protective order by having William Schwarze - the
attorney who prosecuted the ‘613 patent - file a request for reexamination
of the patent claims. Viskase seeks one of two equally draconian remedies:
either 1) an order barring World Pac from prosecuting its request for
reexamination, or 2) if World Pac pursues the reexamination, an order
enjoining World Pac from asserting against Viskase any claims that may issue
as a result.
Viskase has not presented any evidence that Schwarze actually accessed any
Viskase highly confidential information. Instead, Viskase makes a mountain
out of one snippet of testimony--Mr. Schwarze’s answer “yes” to a deposition
question asking whether he had provided “input into World Pac’s litigation
strategy in this case.” On this slim reed, along with Schwarze’s “status
as a partner in the firm that served as World Pac’s litigation counsel,” and
the assertion that “there is no indication that [Schwarze] was screened from
the case or his access to Viskase’s confidential information in any way
restricted,” Viskase’s motion argues, essentially, that Schwarze must have
had access to Viskase confidential information.
In response, World Pac affirmatively asserts that Schwarze had no access to
Viskase confidential materials, and that indeed Schwarze’s firm
intentionally restricted him from such access.1 Schwarze himself filed a
09C5022 Viskase vs. World Pac, et al.

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STATEMENT
declaration stating that he has not seen any Viskase confidential materials
and has been precluded by his firm from doing so. World Pac included as an
exhibit to Mr. Schwarze’s declaration an email among World Pac’s litigation
counsel dated November 25, 2009 (i.e., prior to Viskase’s discovery
disclosure of any highly confidential documents), indicating that Mr.
Schwarze “will be subject to the limitation on highly confidential materials
in the P.O. since he prosecuted the patents and would likely
prosecute/defend any reexam... .”
World Pac also argues that the only
“highly confidential” information as to whose use in the reexamination
Viskase claims prejudice relates to the “structure and properties of
Viscoat,” and that information about that was available to Mr. Schwarze from
sources other than the discovery materials Viskase produced subject to the
protective order, including information presented in open court.
In reply, Viskase thus changes tack, asserting a strained, rather hair
splitting argument that it does not matter whether Mr. Schwarze actually saw
any Viskase highly confidential materials, it matters only that he “had
access” to them (i.e., that he could have seen them). Viskase draws a
distinction between “having access to” and actually “accessing” confidential
information and takes the position that the protective order in this case
prohibits anyone who “has access to” highly confidential information from
prosecuting a reexamination. I disagree with that reading of the protective
order, since it would be far broader than necessary to protect the parties’
interest in maintaining the confidentiality of their sensitive material.
Viskase goes on to argue that even if I disagree with their interpretation
of the protective order, I should permit Viskase to conduct discovery on the
issue. On the facts Viskase has presented, however, I am not persuaded that
such discovery would be anything more than a fishing expedition.
0

I take this opportunity to admonish World Pac--now for the
third time--that all memoranda are to be electronically filed in
searchable pdf format, not as scanned documents. Any memoranda
not so filed will no longer be considered. Moreover, exhibits
must be filed as separate docket entries, attached to the motions
or memoranda to which they relate, i.e., in this instance, as DN
479-1, 479-2, etc.

09C5022 Viskase vs. World Pac, et al.

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