The Liqmax 120 (one of the accused products manufactured by AVC and sold by its customer, Enermax).

There is a split in authority as to whether errata may be used to make substantive changes to deposition testimony.  The Ninth Circuit has ruled against making substantive changes.

Asia Vital Components Co., LTD. (“AVC”) ran afoul of that ruling by including nearly two dozen substantive changes in its errata, including changing “yes” to “no,” changing the names of various corporate entities, and changing some key words.[1]  The Court agreed with the opposing party’s assertion that the changes appeared designed “to limit AVC’s exposure in the United States by, for example, presenting AVC’s offices in Fremont as belonging to a separate entity… altering customer names, shipping location (from U.S. to Hong Kong), and the names of the products sold in the U.S., and changing ‘shipped’ to ‘sold’ so that AVC can attempt to escape liability due to importation of the accused AVC products into the U.S.”[2]  But even without any improper motive, the changes were not permissible.[3]  Regardless of intent, errata that contradict the original deposition testimony are not allowed.[4]


Continue Reading A Deposition Is Not A Take Home Exam

After a jury verdict of willful infringement, almost $6,000,000 in patent-related damages, and a Chapter 7 bankruptcy, Judge Freeman increased WOSS’s legal troubles by granting TRX’s motions for enhanced damages and attorneys’ fees.[1]

Enhanced Damages.  Judge Freeman first granted TRX’s request for enhanced damages under 35 U.S.C. § 284 given its egregious behavior.  In making her determination, Judge Freeman considered the Read factors[2] and WOSS’s subjective intent.

At trial, the jury found that WOSS willfully infringed US Patent No. 7,044,896 (“the ’896 patent”).  Central to Judge Freeman’s decision to enhance damages was WOSS’ intent at the time of infringement.  At trial, WOSS’s founder, Mr. Ott, testified that he did not think WOSS’s band (left) infringed the ’896 patent (right):

Figure showing WOSS’s band               Figure displaying ’896 patent


Continue Reading WOSS Fitness Bands Suffer Post-Trial Pain