Judge Sue L. Robinson recently found that the second phase of a trial, which was to address indirect infringement allegations, was no longer necessary in light of the parties’ understood agreement that if the jury returned a verdict finding direct infringement, the parties would settle the matter. Juniper Networks, Inc. v. Palo Alto Networks, Inc., Civ. No. 11-1258-SLR (D. Del. Mar. 6, 2014). The trial had been bifurcated into a direct infringement phase and an indirect infringement phase as a result of the parties’ contentious litigation history and in an effort to avoid “the admission of evidence that is totally irrelevant to the question of direct infringement based on the ‘knowledge’ and ‘intent’ prongs of the induced infringement standard.” In its order bifurcating the trial, the Court explained that if the plaintiff did not prevail in the direct infringement phase, the indirect infringement phase would not be necessary. The plaintiff disagreed, “specifically pointing to an alternate defense of divided infringement theory posited by [the defendant] in its interrogatory responses and the explanation provided by the Federal Circuit in [Akamai Tech., Inc. v. Limelight Networks, Inc., 692 F.3d 1301, 1308 (Fed. Cir. 2012)], to wit, that a party may be found liable for induced infringement even in the absence of direct infringement ‘where the infringing conduct is split among more than one other entity.’”
The Court disagreed with the plaintiff’s view that even if the jury returned a verdict of no direct infringement, an indirect infringement phase would still be appropriate in this case, explaining that the defendant “stipulated to the fact that both it and its customers have used each of the accused products and features [and] [n]either of the experts opined on the theory of divided infringement in either their expert reports or at trial.” Accordingly, the Court saw no reason to proceed with a trial on indirect infringement in the event the defendant prevailed in the direct infringement phase.