Thursday, May 30, 2019

Cokebusters prevails on "sham declaration" issue at CAFC

As a first matter related to Quest v. CokeBusters, the concept of
cokebusting refers to carbon ("coke") in a furnace, not the drug "coke."

The judgment of District Judge Sue Robinson was affirmed in part but was
reversed on the matter of sham declarations.

As to sham declarations/affidavits:

The Third Circuit “review[s] a district court’s decision
to exclude materials under the sham affidavit doctrine for
abuse of discretion.” Daubert v. NRA Grp., LLC, 861 F.3d
382, 389 (3d Cir. 2017). Under the Third Circuit’s sham
affidavit doctrine, “a party may not create a material issue
of fact to defeat summary judgment by filing an affidavit
disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict.” Baer v.
Chase, 392 F.3d 609, 624 (3d Cir. 2004). The Third Circuit
has explained its approach in applying the sham affidavit
doctrine as a “flexible” one, “giving due regard to the ‘surrounding circumstances’”:

Of the De Lorenzo declaration:

Second, De Lorenzo did not simply contradict his earlier testimony. He submitted a detailed declaration in
which he explained why his deposition testimony was incorrect. In the declaration, he stated that the source code
shows that the composite bend indicator function was still
under development as of July 8, 2004, and was not available for use until after the Norco Sale because the source
code shows that the most recent comment line for the composite bend indicator function is dated July 8, 2004 (i.e.,
after the Norco Sale). He further explained that he was
only given a portion of the source code during his deposition
and was not given the page with the July 8, 2004, date. He
stated that had he seen the July 8, 2004, comment during
his deposition, he would have known that the source code
was not commercially available on August 28, 2002.
De Lorenzo thus offered a plausible explanation for
why he misspoke at his deposition, and Cokebusters does
not dispute that De Lorenzo was not given access to the full
source code during his deposition. Nor does Cokebusters
dispute that the source code contains the July 8, 2004, modification date.


In summary, it was error for the district court to disregard the declarations of De Lorenzo and Bondurant, even
applying the deferential standard of review, particularly
since Cokebusters has the burden to show by clear and
convincing evidence that the Norco Sale satisfied all of the
limitations of claims 30 and 40.12 The district court could
not disregard the De Lorenzo and Bondurant declarations,
and there is a genuine issue of material fact as to whether
the Norco Sale satisfied the limitations of claims 30 and 40.
Accordingly, we reverse the judgment as to claims 30 and
40 and remand for a trial.


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