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University of Pittsburgh of the Commonwealth System of Higher v. Varian Medical Systems

January 18, 2012

UNIVERSITY OF PITTSBURGH OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, PLAINTIFF,
v.
VARIAN MEDICAL SYSTEMS, INC., DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Court Judge

ELECTRONICALLY FILED

ORDER OF COURT DENYING DEFENDANT'S MERITLESS MOTION FOR THE COURT TO CERTIFY QUESTION UNDER 28 U.S.C. § 1292 AND UNTIMELY MOTION TO STAY (FILED ON THE EVE OF TRIAL) (Doc. No. 468)

This Court has handled this particular case ("Varian II") since June 16, 2008, and its prodigy ("Varian I") since March 13, 2007, through their sundry hills, detours, and trails, without even one day of trial on any issue. Currently pending before the Court are defendant's Motion for the Court to Certify Question Under 28 U.S.C. § 1292 and Motion to Stay (doc. no. 468), filed literally on the eve of trial (i.e., 3 business days left until the commencement of trial on January 23, 2012). The Court has also reviewed plaintiff's Response in Opposition to Defendant's Motion for Certificate of Appealability (doc. no. 469).

A. Standard

The standard for determining if a District Court Order should be certified for appeal is:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order . . . . 28 U.S.C. § 1292(b).

"There are no established criteria for making the decision other than those set forth in the statute." Wirtgen America, Inc. v. CMI Corp., 1997 WL 632798, at *2 (Fed. Cir. 1997). Accordingly, "disagreement [with the District Court's decision] does not make the district court's order an appropriate one for interlocutory review." Parkson Corp. v. Fruit of the Loom, Inc., 1993 WL 51346, at *1 (Fed. Cir. 1993).

B. Willfulness Trial

The dispute relevant to the present Motions began with the parties' cross-motions for summary judgment on various issues. In particular, defendant moved for summary judgment on the issue of willfulness, and argued that willfulness was a simple, straight-forward issue which should be decided in its favor. Defendant spent only six pages setting forth its position as to the simplicity of this issue and the purportedly overwhelming evidence in its favor in that regard (doc. no. 365). Plaintiff responded that, despite disputes as to a few facts, which created a genuine issue of material facts and require denial of defendant's motion for summary judgment, the issue of willfulness was simple and straight-forward (doc. no. 399, 8 pages). See also Defendant's Reply brief (doc. no. 416, 4 pages).

While the Court denied defendant's Motion for Partial Summary Judgment as to the issue of willfulness, the Court took defendant at its word that willfulness was a simple, straight- forward issue, and thus set a trial date and a pre-trial schedule on this singular issue. In response, defendant has engaged in a number of tactical maneuvers to delay the trial on this particular issue and now argues that the willfulness issue requires a complex, multi-faceted trial. Defendant has provided no explanation as to why a matter that was fully briefed in only six pages, and characterized as a simple, fact-driven issue, has now purportedly become extremely complex.

Defendant's Motions (doc. no. 468)seek to complicate the issue set to be tried in less than a week. *fn1 These Motions are an example of why patent litigation has become so lengthy in duration and expensive in its resolution. It is also an example of taking something that, in defendant's view, was a very simple issue, only two months ago, and now attempts to make the same issue almost as big as the entire case.

In order to avoid a trial on the merits of willfulness, defendant now takes the position that: (1) the trial needs to be re-scheduled to a time of its convenience and (2) the issues set to be tried must be done so in the order that best favors defendant. In addition, defendant now appears to be arguing that a full trial on its purported invalidity defenses must occur first and then the invalidity defenses must be fully re-litigated in the willfulness portion of the case.

C. The Case is Fully Pre-Tried and Ready For Jury Selection Next Monday, January 23, 2012

Defendant Varian waited until numerous preliminary and often final Court rulings on voire dire, admissibility of exhibits, deposition designation, witnesses, preliminary jury instructions, and final jury instructions - - waited until defendant knew whether in its opinion the trial rulings ...


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