The plaintiff always wants to leave the door open. If they uncover new claims in discovery, they want to be able to add them in all the way up to trial. Defendants, of course, want to slam the door shut and wedge a dresser in front of it.
Whence Amendment?
The usual compromise is a deadline to amend the pleadings, which is included on all of our Judges' form scheduling orders. Interestingly, none of the orders specify when this deadline should fall, and in practice it varies widely. Looking at five recent orders I happen to have on hand, two had dates between the deadline for …
A lot of people are interested in Chief Judge Connolly's Friday hearing about litigation funding. Here is a chart of this blog's traffic for its entire existence through this weekend:
And here is a chart for that same period of time, plus one day—the day we circulated the post about Friday’s hearing:
The Court clearly hit on an issue that people care about!
Why an Entity Like Mavexar Might Want to (Supposedly) Operate This Way
Watching some of the comments on yesterday's post, one of the questions that came up was why a patent assertion entity would be interested in giving away 5-10% of their settlement revenue to what seems to be a random person, in exchange for that person …
"What do you mean, I can't talk to the defendant risk-free for an indefinite period of time prior to bringing suit?"AI-Generated, displayed with permission
Often, patentees will file suit before ever talking to the accused infringers, for a number of reasons. First, obviously, that lets them control where suit is filed. If a patentee says the wrong things to an accused infringer prior to suit, they could inadvertently create declaratory judgment jurisdiction and the accused infringer could file in their home jurisdiction. Patentees don't want that.
Filing suit before speaking also shows that the patentee means business. They aren't just going to go away, and they are willing to pay at least the cost of drafting a complaint and the filing fee.
But there are other reasons as well, and today's ruling in TTI Consumer Power Tools, Inc. v. Lowe's Home Centers LLC, C.A. No. 22-673-CFC (D. Del.) shows one of them.
There, the patentee apparently reached out to the defendant long before it intended to file suit. It's not clear exactly how long before, but it was enough time for the future-defendant to inform the plaintiff of the prior art and to file a request for an ex parte reexamination, and for the PTO to grant that request—and then for six weeks to pass after that!
So it must have been no surprise to the patentee that the Court found that all of the stay factors favored a stay, and stayed the case. The theme of the patentee's arguments against a stay were that it shouldn't be penalized for taking time to resolve the issue without litigation—but the Court disagreed ...
I flagged on Wednesday that Chief Judge Connolly planned to hold an evidentiary hearing today regarding compliance with his litigation funding and entity ownership orders in three cases. Well, I went, and it was one of the most remarkable hearings I've seen in a patent case.
The purpose of the hearing was to dig into whether the parties complied with Chief Judge Connolly's standing orders regarding litigation funding and entity ownership.
But the Court's statements at the hearing offered some insight into what motivated those orders in the first place: Chief Judge Connolly believes (as he has said before) that the District Court is not a "star chamber," and that the public has …
One thing I noticed, but failed to mention, in discussing Judge Williams' opinion in Cirba IP, Inc. v. VMware, Inc., C.A. No. 19-742-GBW, week was the following passage on footnotes in briefing:
[T]he Court ultimately needs not address this footnote argument because "arguments raised in passing (such as, in a footnote), but not squarely argued, are considered waived. "
Cirba, at 4 n.3 (quoting Samsung Elecs. Co. v. Netlist, Inc. , C.A. No. 21-1453-RGA, 2022 WL 3027312, at *5 (D. Del. Aug. 1, 2022))
This is a policy we've touched on occasionally on the blog, most notably from Judge Andrews.
Where it gets interesting, is that Judge Williams issued another order with …
It seems there has been a lot of interest in Chief Judge Connolly's evidentiary hearings about compliance with his standing orders regarding disclosure of litigation funding and entity ownership, which are now scheduled in over 20 cases.
I've had a few questions about when the hearings are going forward, so here is an update.
Here Is When the Hearings Are Scheduled
Here is when the hearings are set for, at least as of today:
Friday, November 4, 2022, at 10 am in Courtroom 4B: Cases involving Mellaconic IP, Lamplight Licensing LLC, and Nimitz Technologies LLC are set for hearings regarding compliance with the Court's third-party litigation funding order. See C.A. Nos. 22-244, 22-541, 22-418, 22-1017, 21-1247, 21-1362, 21-1855, …
I've filed my fair share of motions to amend a case caption. Indeed, I recall my very first one.
It was a cold February morn, and the winds whipped through the loose boards that were all that stood between the library and the nor'easter steeping outdoors. Volume after volume was chosen and discarded as I searched for any guidance on what a motion to amend the caption should include -- what standard must be met? What oaths must be sworn?
Indeed, I recall the the sum total of the guidance on the issue in the federal rules was contained in Rule 10(a), which helpfully states:
[e]very pleading must have a caption with the court's name, a …
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