A Blog About Intellectual Property Litigation and the District of Delaware


Shocker! The "Mansplaining" Brief Fails: Court Compels Mavexar LLC Member Involved in 97 Patent Cases to Attend Hearing

Andrew E. Russell, July 10, 2023
Mavexar FRCP 45

Travel
Dino Reichmuth, Unsplash

We wrote last month about the "mansplaining brief," which caught some eyes around town when it (and the declaration attached to it) accused the Court of "gender harassment and discrimination."

We set out the full background in our post, but generally the Court ordered the sole member of a Mavexar-related LLC to attend a hearing here in Delaware.

She then filed a motion for reconsideration offering numerous objections, including among other things that (1) the Court had no power under FRCP 45 to compel her attendance, since she lives in Texas; and (2) that she is a working mother and therefore unable to travel to Delaware.

(She also said that she "feels harassed" by …

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Patentee Successfully Reverses Court's § 101 Ineligibility Finding by Amending Complaint

Andrew E. Russell, July 9, 2023
§ 101 Motion to Amend

All across the district, defendants silenty wonder:
All across the district, defendants silenty wonder: "Oh crap, is this gonna be a thing now?" NASA, Unsplash

Here's one you don't see every day. Back in March, Judge Burke granted a § 101 motion to dismiss as to the claims of two of the six asserted patents in Topia Technology, Inc. v. Egnyte, Inc., C.A. No. 21-1821-CJB (D. Del. Mar. 31, 2023).

In that opinion, the patentee did not dispute that the claims were directed to the abstract idea of synchronizing a file across a network:

Plaintiff, for its part, does[ not] dispute that synchronizing multiple versions of a file across network computers is an abstract idea, and the Court agrees that it is. Again, …
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The Hamburglar Did Nothing Wrong

Nathan R. Hoeschen, July 6, 2023
Ethics

You don't get to pick your jobs in the P.I. biz. A good gumshoe takes what walks in the door, and the only questions he asks are "how much?" and "permanently?" The only answer he'll take is a raised eyebrow and and that money gesture when you rub your thumb against two fingers.

Hamburglar was of the old school. 40 years ago he had a reputation that could make a clown go back into his little car with all his friends and drive off without so much as a honk. When the doc said his arteries were starting to look looked like string cheese, he put that all behind him - hung up his shingle and started trying to solve …

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Court Rejects Attempt to Use Error in Running Searches as Excuse to Re-Negotiate ESI Search Terms

Andrew E. Russell, July 5, 2023
Search Terms Discovery Dispute

Yeah. Everybody can see the frog.
Yeah. Everybody can see the frog. Kieran Wood, Unsplash

As Delaware counsel, I sometimes have to say something along the lines of "the Court is going to see right through that" or "nobody is as sly as they think they are."

Usually this is in the context of something like slipping wholesale invalidity arguments into a claim construction brief (seriously? You think you are going to win SJ of anticipation at claim construction?) or "just flagging" a completely unrelated and irrelevant issue in a discovery dispute.

I saw an example of this last week in Speyside Medical, LLC v. Medtronic Corevalve, LLC, C.A. No. 20-361−GBW−CJB, D.I. 290 (D. Del. Jun. 26, 2023).

In Speyside, the …

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Confirmed: The Avandia Redaction Standards Do Not Apply to Discovery Motions. Have We All Been Fighting for Nothing?

Andrew E. Russell, July 4, 2023
Redactions

The Delaware bar lately, arguing over redactions to discovery dispute letters
The Delaware bar lately, arguing over redactions to discovery dispute letters Hasan Almasi, Unsplash

Based on the redaction disputes I've seen in couple of cases lately, some of us here in Delaware have forgotten that the high Avandia standards for access to public materials do not apply to discovery dispute letters and their attachments, as Judge Fallon confirmed last month:

[T]he common law right of access does not extend to discovery motions and supporting materials because the "underlying discovery material itself is not a judicial record." Genentech, Inc. v. Amgen, Inc., C.A. No. 17-1407-CFC et al., 2020 WL 9432700, at *3 (D. Del. Sept. 2, 2020) (citing Leucadia, Inc. v. Applied Extrusion Techs., Inc., …
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How Many Stips to Extend the Answer Deadline Is Too Many? Nine. (Or Sixteen?)

Andrew E. Russell, July 2, 2023
Complaint Stipulation

Stop
Markus Spiske, Unsplash

We've noted before that parties routinely stipulate to extend the deadline to answer in D. Del. cases. You may have wondered—is there a limit to the number of times the parties can stipulate to extend the answer deadline?

Now we have the answer: Yes, at least for Judge Williams. Here is how he reacted when parties filed their ninth stipulation to extend the answer deadline:

ORAL ORDER: There have been nine (9) Stipulation and Proposed Orders entered in this case granting Defendant an extension of time for it to answer, move, or otherwise respond to the Complaint. See D.I. 20; D.I. 21; D.I. 22; D.I. 23; D.I. 24; D.I. 25; D.I. 26; D.I. 27; D.I. …
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The Halls of Justice

Nathan R. Hoeschen, June 29, 2023

Breaking news from our favorite court! Our own Magistrate Judge Hall has been nominated to fill the Judge Andrews' vacancy once he takes senior status at the end of this year.

Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Andrew Russell, CC BY 2.0

As with Judge Williams, the White House provided a helpful and succinct summary of Magistrate Judge Hall's qualifications: “Judge Jennifer L. Hall has served as a United States Magistrate Judge on the U.S. District Court for the District of Delaware since 2019. Previously, Judge Hall served as an Assistant U.S. Attorney in the U.S. Attorney’s Office for the District of Delaware from 2011 to 2015 and served as Chief of the office’s …

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Another Litigation Funding Hearing is Set for Friday, July 21, 2023

Emily DiBenedetto, June 28, 2023
Mavexar Disclosure Statement

Hercules Slaying the Hydra

Judge Connolly’s new order provides a concise summary of the Mavexar timeline and announced the date of a long-delayed evidentiary hearing in the Creekview case.

Mark your calendars for Friday, 7/21 at 9:00AM in Courtroom 4B. This hearing was originally slated for December 6, 2022, but it never happened.

Last fall, Judge Connolly ordered a series of evidentiary hearings in approximately a dozen cases to determine whether LLC plaintiffs had complied with his standing order.

According to the Court in his newest order, the first hearing in that series, involving Nimitz, Mellaconic, and Lamplight:

raised serious concerns that the parties may have made inaccurate statements in filings with the Court; that counsel, including Mr. Chong, may have …
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An ANDA Trend?

Nathan R. Hoeschen, June 27, 2023
ANDA

Drug patents are legion, and they are prone to flock together. In ancient times, a patent would describe A molecule that cured . . . the dancing plague (?) and that would be the end of that. But one bright fellow after another came up with new ways to extend the life of a drag patent, from formulation, to method of treatment, to the new hip thing -- interaction patents.

The gist of these patent claims is pretty basic

  • You've got a drug that you normally give in amount A.
  • You've got atypical patient with whose taking drug B, or has condition C (these pretty much always have something to do with the liver, don't ask me why, I was …
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Judge Williams Joins the Other D. Del. Judges in Limiting Parties to 10 Claim Terms

Andrew E. Russell, June 26, 2023
Markman Briefing 10 terms

Caution Warning
Bernd Dittrich, Unsplash

We've written a lot about the common D. Del. practice of limiting parties to 10 claim terms per case (at least for the Markman hearing).

We talked about a similar order from Judge Andrews earlier this month, and previous orders by Judges Connolly, Noreika, and Burke. Now, Judge Williams has set the same limit, in at least one action:

ORAL ORDER: Having reviewed the parties' Joint Claim Construction Brief (D.I. 96), IT IS HEREBY ORDERED that the Court will construe a maximum of ten (10) terms/term sets during the August 1, 2023 Claim Construction Hearing. The parties shall meet and confer and, no later than July 17, 2023, the parties shall file …
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