Metaswitch moved to exclude evidence of copying from a patent infringement action filed against it by Genband. Genband asserted during the pretrial process that it was seeking to introduce evidence of copying as an indication of nonobviousness.

The district court determined that evidence of alleged copying should be admitted "because it is relevant to the obviousness determination, and the Court admitted only such copying evidence as was shown to bear a nexus to the claimed technology." See In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litig., 676 F.3d 1063, 1075-79 (Fed. Cir. 2012) (secondary considerations of non-obviousness serve as an important check on hindsight bias and "must always when present be considered.");Wm. Wrigley Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356, 1364 (Fed. Cir. 2012) ("a nexus between the copying and the novel aspects of the claimed invention must exist for evidence of copying to be given significant weight in an obviousness analysis").

The district court also noted that some evidence of copying might also be relevant to support an inference of infringement. "However, some evidence that might be used to support an inference of copying, such as knowledge of the patented technology during development of the accused products, might also support an inference of infringement."

Nonetheless, the district court also stated that, "[a]lthough the law is clear that the ultimate fact of copying has no legal relevance to infringement, such evidence is not rendered inadmissible simply because it could support either inference. In Allen Engineering Corp. v. Bartell Industries, Inc., 299 F.3d 1336 (Fed. Cir. 2002), the Federal Circuit held, in discussing 'the legal effect of alleged copying,' that copying 'is of no import on the question of whether the claims of an issued patent are infringed.' Id. at 1350-51. The district court in that case appeared to have compared the accused products to the patentee's products in determining infringement. In the present case, heedful of the Federal Circuit's guidance, the Court did not pre-admit evidence of copying on the basis of any perceived relevance to the issue of infringement."

Accordingly, the district court permitted the evidence of copying.

Genband US LLC v. Metaswitch Networks Corp., Case No. 2:14-cv-33-JRG-RSP (E.D. Tex. Jan. 2016)