United States District Court, D. Minnesota
Alexander Farrell, Esq., F. S. Farrell, LLC, Edina, MN, on behalf of Plaintiff.
Willmore F. Holbrow, III, Esq., Blakely Sokoloff Taylor & Zafman LLC, Los Angeles, CA, and Dennis C. Bremer, Esq., Carlson Caspers Vandenburgh Lindquist & Schuman PA, Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
ANN D. MONTGOMERY, District Judge.
On March 5, 2015, the undersigned United States District Judge heard oral argument on Plaintiff Sorna Corporation's ("Sorna") Motion to Strike [Docket No. 80]. Sorna seeks to strike sections of Defendant Perceptive Software, LLC's ("Perceptive") Opening Claim Construction Brief [Docket No. 78] ("Perceptive's Opening Brief") pertaining to indefiniteness under 35 U.S.C. § 112, ¶ 2. Perceptive opposes the motion. For the reasons set forth below, Sorna's Motion is denied in part.
Sorna is a Minnesota corporation that manufactures, sells, and licenses medical technology and devices, including medical data recording devices that implant medical data onto portable media. Second Am. Compl. [Docket No. 26]. Sorna owns four patents that are at issue here: United States Patent No. 7, 965, 408; United States Patent No. 8, 045, 214; United States Patent No. 8, 059, 304; and United States Patent No. 8, 687, 226 (collectively, the "Patents-in-Suit"). Id . ¶¶ 8-11. In general terms, the Patents-in-Suit cover inventions that receive and record medical image and patient identification information from one or more modalities (x-rays, CT scans, MRIs, etc.) in a standard medical data format called DICOM.
Perceptive manufactures and sells medical data recording devices, including the MediaWriter product. Id . ¶ 13. The MediaWriter "[b]urns DICOM studies and reports to create a complete and portable medical record - includes an embedded viewer." Id . ¶ 14. Sorna alleges that Perceptive's products literally infringe the Patents-in-Suit. Id . ¶ 15.
On November 21, 2014, the parties submitted their Joint Patent Case Status Report. The Joint Patent Case Status Report identified contested construction of 17 different claim terms, phrases, and clauses. A Markman hearing was noticed for March 5, 2015 [Docket No. 66]. On February 12, 2015, the parties submitted their opening Markman briefs. On February 23, 2015, Sorna filed its Motion to Strike. Sorna argues that Perceptive's Opening Brief impermissibly argues that five of the 17 disputed claim terms are indefinite under § 112, ¶ 2. Sorna asserts that Perceptive both failed to plead indefiniteness as an affirmative defense and also failed to assert indefiniteness in accordance with the Scheduling Order [Docket No. 18]. Therefore, Sorna argues that Perceptive's indefiniteness arguments should therefore be stricken.
A. Motion to Strike
Pursuant to Fed.R.Civ.P. 12(f), a "court may strike from a pleading... any redundant, immaterial, impertinent, or scandalous matter." According to rule 7(a), "pleadings" are identified as the complaint, answer, and reply, but not motions or other papers. Fed.R.Civ.P. 7(a). However, district courts are vested with the inherent power to strike a party's submissions other than pleadings. Computer Stores Nw., Inc. v. Dunwell Tech, Inc., No. 10-284, 2011 WL 2160931, at *4 (D. Or. May 31, 2011) (citing Metzger v. Hussman, 682 F.Supp. 1109, 1110 (D. Nev. 1988)). A court possesses "inherent power over the administration of its business[, ]" which also provides a legal ground for striking a party's non-pleading. Computer Stores Nw., Inc., 2011 WL 2160931, at *4 (quoting Spurlock v. F.B.I., 69 F.3d 1010, 1016 (9th Cir. 1995)).
B. Perceptive Sufficiently Pled Indefiniteness
Sorna argues that Perceptive failed to plead indefiniteness in its Answer and Counterclaim [Docket No. 27] and thus waived its right to assert indefiniteness defenses for the remainder of this litigation. Sorna further argues that Perceptive should not be permitted to amend its pleadings because the date to amend pleadings has passed. Finally, Sorna argues that permitting Perceptive to raise indefiniteness defenses at this juncture would be unfairly prejudicial. Perceptive responds that paragraph 91 of its Answer and Counterclaim asserts its indefiniteness defense. If paragraph 91 is deemed insufficient, Perceptive argues that its indefiniteness contentions were nonetheless timely identified and Sorna will not be prejudiced by granting leave to amend to conclusively assert this ...