Footnote 10, on page 18 of document #124
As the lawsuit is currently filed, you are correct, but you need to also look at footnote #10 on the MSJ. In short, the lawsuit can be amended or refiled, then the certificate of correction will allow from the earlier date so that patents will be valid, but the infringement period for damages would only be from the date the certificate of correction was issued. That time period is still three years.
You need to look at this footnote on the MSJ:
10 In this case, Worlds alleges continued infringement through the lives of the Patents-In-
Suit. D. 32. Indeed, nothing about the Court’s order prevents Worlds from asserting
infringement from the date of the certificate going forward. E.I. Du Pont De Nemours & Co. v.
MacDermid Printing Solutions, L.L.C., 525 F.3d 1353, 1362 (Fed. Cir. 2008) (noting that “each
act of infringement gives rise to a separate cause of action” and concluding that, while a
certificate of correction will not apply if it issues after the “cause of action arose,” it can apply to
future infringing conduct). In light of the foregoing, the Court declines to enter judgment in
Defendants’ favor at this time. Instead, the Court ORDERS the parties to meet and confer to
discuss whether the appropriate course of action is for the Court to dismiss the instant action
(without preventing Worlds from commencing a new action alleging infringement from the date
of the certificates going forward), or merely confine this decision to infringement allegedly
occurring from the dates the patents issued through the lives of the Patents-In-Suit. The parties
shall file a joint statement, not exceeding more than five (5) pages, outlining their respective
positions with the Court no later than March 27, 2014.
Louis J. Desy Jr.
LouisDesyjr@gamil.com
