The only defendants who have not yet settled in a lawsuit brought by Ultravision Technologies LLC, Shenzhen Absen Optoelectronic Co. Ltd. and Absen Inc. (collectively, Absen), were denied summary judgment in a one page order adopting the magistrate judge’s report and recommendation and overriding Absen’s objections to that decision. According to Monday’s ruling, Absen sought to prevent the plaintiff, an LED lighting company, from claiming pre-suit damages for failure to demarcate its products as patented.
The lawsuit dates back to 2018 when Ultravision sued a number of companies for infringement of several of its patents relating to LED technology. In April 2019, the court consolidated the Absen case with several others under the lead case against GoVision LLC. The magistrate judge’s May 24 report and recommendation explained that after Ultravision filed its first amended complaint in June 2019, the case narrowed significantly as every defendant settled except for Absen.
In its motion for partial summary judgment, Absen argued that two of Ultravision’s product lines that practice each of the patents-in-suit are neither physically marked, nor has Ultravision adequately virtually marked these products. For its non-compliance with federal patent law, the plaintiff should be precluded from damages prior to June 6, 2019, the motion contended.
The magistrate judge found that Absen did not identify “‘specific unmarked products which the alleged infringer believes practice the patent,’” but instead identified its intent to assert a marking defense in its answer to Ultravision’s complaint. Though Absen failed to carry its burden under circuit precedent, the court declined to bar Absen from raising the defense at trial.
In its motion for reconsideration, Absen argued that the procedural grounds upon which the magistrate judge’s opinion rested were faulty. Precedent does not require an “accused infringer to satisfy its initial burden of production sometime prior to summary judgment, in order for the defense to be considered at summary judgment,” the filing stated.
In its brief order, the Eastern District of Texas Court disagreed. After reviewing the moving papers and report and recommendation, Judge Rodeny Gilstrap determined that Absen failed to show that the magistrate judge’s ruling was erroneous. Jury selection is scheduled to begin on Thursday in Marshall, Texas.
Ultravision is represented by Fabricant LLP and McKool Smith P.C. Absen is represented by Goodwin Procter LLP and Gillam & Smith LLP.
