A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: 2021

Judge Connolly Compliments Attorney's Behavior, Advises That "All Counsel Would Do Well to Follow His lead"

Andrew E. Russell, April 12, 2021
Litigation Oral Argument

High Five
High Five Jonas Vincent, Unsplash

Judge Connolly put this oral order on the docket on Thursday:

ORAL ORDER: The Court has read Plaintiffs' April 7 letter . . . . The Court understood Mr. Groombridge's response to be in substance what Plaintiffs outline in their letter. The Court asked an imprecise question. But the Court had in mind what Mr. Groombridge had in mind. Mr. Groombridge has appeared before the Court on numerous occasions and the Court appreciates and respects his practice of conceding points he should concede and getting to the heart of the disputed matters before the Court. All counsel would do well to follow his lead in that regard.

Amgen Inc. v. Hospira, Inc., C.A. …

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A Look Back at Judge Stark's First Remote Trial

Nathan R. Hoeschen, April 9, 2021
Remote Trials Expert Witness

Just as Delaware gears up to resume jury trials, Judge Stark has released his post-trial opinion for his first fully remote trial of the pandemic in AO Smith Corp. v. Bradford White Corp., C.A. No. 18-412-LPS.

The opinion -- long in the manner of all post-trial opinions -- is worth a read in full. But for my money the main takeaway is how large a roll witness credibility appeared to play in the final outcome, as the difficulty in assessing these things has long been an argument against fully remote trials.

As often happens, the infringement case amounted to a battle of the experts, and there does not appear to be any dispute about who won. Somewhat unusually, the …

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Navigating Judge Connolly's Concise Statement of Facts

David M. Fry, April 8, 2021
Summary Judgment

Compass
Jamie Street, Unsplash

Pop quiz: What's the easiest way to get your SJ motion denied in a single page? Answer: Tell the judge that a disputed fact is material to your motion.

Several of the D. Del. judges require parties to include a concise statement of material facts with their summary judgment motions. This is exactly what it sounds like: a statement of each fact that the moving party contends is (a) essential to resolve the motion and (b) undisputed.

Judge Noreika, Judge Connolly, and Magistrate Judge Hall each require a concise statement to be filed with the opening brief, as well as a responsive statement with the answering brief. Judge Noreika and Magistrate Judge Hall also require …

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Even After Change in Law, Preliminary Injunctions In Trademark Cases Not a Given

Jeff Castellano, April 7, 2021
Trademark Litigation

Despite a 2020 change in the law designed to make obtaining a preliminary injunction easier for plaintiffs in trademark cases, Judge Stark denied a trademark plaintiff's motion for preliminary injunction, finding that the defendant had effectively rebutted the statutorily-imposed presumption of irreparable harm.

Bad news for these guys perhaps.
Bad news for these guys perhaps. green insect, horror by numbers, Unsplash

In Nichino America, Inc. v. Valent U.S.A., LLC, C.A. No. 20-704-LPS, the plaintiff sought preliminary injunctive relief, arguing that the defendant's use of the Senstar mark in connection with an insecticide product was infringing its Centaur mark, also used to market insecticides. After applying the ten-factor Lapp test, Judge Stark concluded that the plaintiff had shown a likelihood of confusion and thus …

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A Return to In-Person Mediation in D. Del.?

Andrew E. Russell, April 6, 2021
COVID-19 Trial Calendar

I heard today from one of the magistrate judges (with permission to pass along) that, going forward, the District of Delaware is permitting in-court mediations again, at the discretion of each individual magistrate judge and on a case-by-case basis. The expectation is that the judges will limit the number of people attending the mediations, and that virtual proceedings will remain an option. It is also expected that the change may primarily benefit local cases, as patent cases often involve attorneys or client representatives traveling to Delaware from locations that may still have travel restrictions.

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Here Is an Overview of the Changes in Judge Noreika's New Form Scheduling Orders

Andrew E. Russell, April 6, 2021
Scheduling Orders Scheduling Order

Form Scheduling Order
The Honorable Maryellen Noreika

Judge Noreika updated her form scheduling order yesterday. Here are the changes:

  • Separate deadlines for fact and expert discovery cut offs. Judge Noreika's old form orders, and several other judges' form scheduling orders, set a cut off date for "all" discovery and a deadline for substantial document production. But parties often also set a separate deadline for fact discovery, so that there is a clear delineation for when fact depositions and any remaining document production need to end before expert reports occur. This resolves that issue.
  • Joint claim chart changes. Intrinsic evidence must now be submitted in an appendix rather than with the joint claim chart. This may help with the common issue that …
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D. Del. Officially Lifts Jury Trial Ban

Andrew E. Russell, April 5, 2021
COVID-19 Trial Calendar

COVID-19
CDC / Alissa Eckert, MS; Dan Higgins, MAMS

Today, the District of Delaware formally lifted its jury trial ban:

The Standing Order RE: Criminal and Civil Jury Trial Suspension issued February 5, 2021[,] expires today, April 5, 2021. Based on current conditions and after consultation with the Court’s Reopening Committee, the Court has decided that it will not, at this time, extend the order. Whether and when any particular case will proceed to trial is left to the discretion of each individual judge of the Court.

There is a jury trial scheduled for today in JHL Pharmaceuticals, LLC v. PuraCap Laboratories, LLC, C.A. No. 18-553-MN (D. Del.), although it's not clear yet from the …

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14 Discovery Disputes is One Too Many

Andrew E. Russell, April 2, 2021
Discovery Dispute

Tennis Court
Bannon Morrissy, Unsplash

On Wednesday, Judge Burke issued the following order cutting the parties off from further discovery dispute teleconferences—but not discovery disputes—after they brought their fourteenth request for discovery assistance in just over a year:

ORAL ORDER: The Court, having reviewed the parties' . . . request [for] a discovery teleconference . . . hereby notes as follows: (1) since the Court was referred this matter in February 2020 to resolve discovery/protective order disputes, this is the 14th different time that the parties have sought the Court's assistance in that regard; (2) as part of those 14 different requests for Court assistance, the parties have brought the Court a total of 31 different disputed issues to …
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Daubert on Defense

Nathan R. Hoeschen, April 1, 2021
Daubert

This picture of a duck is unrelated to the article
Ross Sokolovski, Unsplash

Under Judge Andrews' form scheduling order, the parties are allotted a certain number of pages for both Daubert and summary judgment briefs. Given how difficult it is to win most Daubert motions in the district, it might sometimes make sense to forego filing one in order to devote more pages to briefing a seemingly stronger SJ motion.

Yesterday, Judge Andrews gave the district a reason to rethink this strategy.

The defendants in M2M Solutions LLC v. Sierra Wireless America, Inc., C.A. No 14-1102-RGA-CJB, moved for summary judgment of non-infringement, relying largely on their expert's opinion that the devices did not practice a particular limitation. D.I. 213 at 3 (D. Del. Mar 31, 2021). The plaintiff responded by pointing to various alleged errors in the defense expert's methodology, but failed to actually file a Daubert motion to strike the opinion. See id. Judge Andrews found this failure fatal to the plaintiff's case, stating:

M2M’s objections may be the appropriate subject of a Daubert motion, but M2M does not cite any authority for the proposition that critiquing an expert’s methodology in the absence of a motion to exclude the testimony is sufficient to create a material dispute of fact.

Id. at 4.

The bit of this opinion that I find interesting is ...

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Another Late Expert Opinion Bites the Dust

David M. Fry, March 31, 2021
Motion to Strike Pennypack

We keep writing about how hard it is to win a motion to strike in D. Del., which is generally true. That said, it's still possible to get late-disclosed theories and evidence excluded, especially when there's no good explanation for the delay.

Yesterday afternoon, one plaintiff learned that lesson the hard way. As often happens, the plaintiff argued that the defendant's expert raised new opinions on motivation-to-combine in his reply report.

But instead of moving to strike (or seeking leave to submit a sur-rebuttal report, or dealing with the issue during expert depositions...), the plaintiff simply waited until summary judgment briefing. There, it submitted a rebuttal declaration from its own expert in support of its answering brief on invalidity. …

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