A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: June 2020

District Court Details Re-Opening Plan

Jeff Castellano, June 16, 2020
COVID-19

The District of Delaware just announced its phased re-opening plan, which starts tomorrow (June 17).

COVID-19
COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

The new “District of Delaware Re-Opening Guidelines” came on June 15, about three months after shutdowns began. During the shutdown, the Court issued a number of orders suspending certain operations and encouraging Judges to shift to videoconference or teleconference proceedings.

Yesterday’s guidelines represent the Court’s first official statement regarding a broader return to in-person operations.

The attached order sets a June 17 start date for Phase One.

Highlights

In all of the Phases, the Court will require face masks and social distancing in common areas, although use of those measures in individual courtrooms is left to the judges. …

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"Sandbagging" and the District of Delaware

Andrew E. Russell, June 3, 2020
Litigation Legal Writing

Sandbags
ideadad, Unsplash

In an R&R this week, Magistrate Judge Burke flatly declined to consider a "critical[]" argument raised for the first time in a reply brief:

In their reply brief, Defendants made one other argument, which they failed to raise in their opening brief . . . . (D.I. 37 at 9 (“Critically, neither of these manuals refer to the named defendants in this case[.]”)) Because this argument could have and should have been raised in the opening brief, it has been waived, and so the Court will not consider it here. See McKesson Automation, Inc. v. Swisslog Italia S.p.A., 840 F. Supp. 2d 801, 803 n.2 (D. Del. 2012); LG Display Co., Ltd. …
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Judge Burke Rejects Defendant's Maybe-Too-Clever Attempt to Escape Delaware

Andrew E. Russell, June 1, 2020
MTD

Magistrate Judge Burke issued an R&R today addressing an interesting procedural situation.

In Shure Incorporated et al v. Clearone, Inc., C.A. No. 19-1343-CJB (D. Del. June 1, 2020), the plaintiff moved to amend to add an additional patent, just before the patent issued.

In response, and before oral argument on the motion, the defendant filed a DJ action on the new patent in another jurisdiction, trying to keep that part of the case out of the District of Delaware.

After the Court granted the motion to amend, plaintiff then moved to dismiss under the first-filed rule.

Judge Burke rejected plaintiff's approach, holding both that the amended complaint related back, so it was filed first, and that …

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