The decision to grant the MTD is a disconcerting and depressing read. I drew three conclusions: (1) the judge is smart and paying attention, (2) Cozen is asleep and just made a mistake (which can be corrected), and (3) HCMC needs inside counsel to police Cozen here because there is nobody keeping Cozen straight based on what I am seeing. I commented on this back in March, before HCMC responded to the MTD, but HCMC's opposition should have been much more aggressive. Back in March, I noted that I would have expected some evidence showing evidence of combustion in HCMC's opposition, e.g., an expert declaration of some kind. None was presented. HCMC's opposition was underwhelming. Cozen is asleep. Cozen has the capabiity; they just need to wake up.
Here is the thing about this case. The claims require combustion. HCMC sued on a device, knowing full well that Exhibit J is out there which exhibit states that there is no combustion. Any good patent lawyer, and I would put Cozen in that category, would have done pre-suit due diligence, which means that they would have bought the infringing device, had an expert examine it and test it, and make sure that it does infringe the claim, including that combustion occurs. I assume all of that happened here because that is what good patent lawyers do and that is what the laws and the rules require. If Cozen did not do that, then Cozen and now HCMC have major problems. I said this back in March and I will say it again (and I hope someone at HCMC and Cozen is reading this), JUST PRESENT THE EVIDENCE AND DO IT NOW. PUT IN AN AMENDED COMPLAINT (OR MOTION FOR ONE RATHER) COUPLED WITH AN EXPERT DECLARATION DETAILING FOR THIS JUDGE THE FACT THAT THE EXPERT HAS RUN TESTS ON THE DEVICE, AND THAT THERE IS EVIDENCE OF COMBUSTION. If HCMC does that, if Cozen does that, then I would expect that this case will be allowed to move forward. If HCMC cannot do that, then this case should never have been brought in the first place. To file a case without already having that evidence in hand is wildly reckless and sanctionable under Fed R. Civ. P. 11 and other laws, so I would expect that HCMC has the evidence already. All they have to do is show it to the Court. Now I understand why they might have been hesitant to put it in in the first place - no lawyer loves to put expert declarations in at the complaint stage - but Cozen and HCMC made that bed when they added Exhibit J. I mentioned this back in March. It is textbook 101 in this situation.
Finally, I do not like the Judge's use of the word futile in terms of an amendment here. HCMC, IF YOU ARE READING THIS, THAT IS A SIGNAL TO COME FORWARD WITH YOUR BEST EVIDENCE. NOW IS NOT THE TIME FOR POSTURING AND BEING SHY.
The other recommendation I would make is for HCMC to hire an internal or external patent litigator to police Cozen here and force these things to happen. It would not cost much money; they could even just do it with shares. Holman is a lawyer, but he is not a patent lawyer so this is out of his wheelhouse. They need one seasoned patent lawyer to check Cozen throughout this process.
These are my opinions. I am frustrated as I think sleepiness has caused this when it could have been avoided altogether.
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