A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: 2022

Judge Andrews Grants Motions in Limine Regarding Prior Proceedings and Total Revenues—Here's Why These Are Helpful Motions

Andrew E. Russell, Nov. 16, 2022
Trial Practice Trial Procedure

"Sure our damages figure sounds big, but look how big this other number is!" AI-Generated, displayed with permission

This week, Judge Andrews issued an order on the six motions in limine that the parties filed in Sprint Communications Company, L.P. v. Mediacom Communications Corp., C.A. No. 17-1736-RGA (D. Del. Nov. 14, 2022).

The order is short and to the point, and doesn't identify what the MILs relate to. But if the docket shows that there are at least two MILs here worth mentioning, if only because they come up so often.

Prior Proceedings

The defendant first moved to exclude the outcomes of multiple prior cases, as well as pending cases against co-defendants. Plaintiff responded that the prior …

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Nobody Lives In Texas Either

Nathan R. Hoeschen, Nov. 15, 2022
Transfer

#Texas Troll
AI-Generated, displayed with permission

My wife runs a stationery business headquartered right here in the . . . state of Delaware. When she filled out the form to set up her LLC, she listed our address as the headquarters and herself as the person to be served with process.

The filing was rejected. When she called to figure out why, the good people at the division of corporations explained that they constantly have people trying to incorporate in Delaware (for reasons all parties involved would be hard-pressed to explain), but who don't want to pay the corporation trust company to act as a registered agent. So they list a P.O. box or just a random address and call it a …

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Two Thirds of Latest Round of Cases Consent to Magistrate Judge Jurisdiction Rather Than Getting an Unknown Visiting Judge

Andrew E. Russell, Nov. 14, 2022
Visiting Judges Congestion

"If we don't consent, which visiting judge do you think we'll get?" Hush Naidoo Jade Photography, Unsplash

We've talked before about Chief Judge Connolly's orders that allow parties to choose to either consent to a specific magistrate judge or to have the case assigned to a visiting judge.

Last month, the Court issued those orders in six patent cases. All of the orders followed the same pattern as last time, giving the choice between a specific magistrate judge or an unknown visiting judge:

ORAL ORDER: It is HEREBY ORDERED that on or before November 1, 2022, the parties shall either (1) submit to the Clerk of Court an executed Form AO 85 Notice, Consent, and Reference of a Civil Action to a Magistrate Judge, indicating their consent to have a United States Magistrate Judge conduct all proceedings in this case including trial, the entry of final judgment, and post-trial proceedings; or (2) file a joint letter indicating that all the parties do not consent to a referral of this action to a Magistrate Judge. The letter should not indicate which party or parties did not consent. If all the parties consent, the case will be referred to Magistrate Judge Burke. Because of the Court's caseload, if the parties do not consent, the Court intends to assign the case to a visiting judge from another district. Ordered by Judge Colm F. Connolly on 10/18/2022.

These orders started last year, before Judge Stark's departure for the Federal Circuit. It makes sense that the Court is sticking with ...

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A New Visiting Judge for D. Del. Patent Cases: Senior United States District Judge Joel H. Slomsky of the Eastern District of PA

Andrew E. Russell, Nov. 14, 2022
Visiting Judges Congestion

Philadelphia
Dan Mall, Unsplash

I noticed a new visiting judge here in the District of Delaware this month: Senior United States District Judge Joel H. Slomsky of the Eastern District of PA.

To my knowledge, Judge Slomsky has not previously served as a visiting judge in the District of Delaware, other than signing one stipulation on an emergency basis back in 2010. It looks like Judge Slomsky took on four patent cases this month.

Welcome, Judge Slomsky!

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Chief Judge Connolly Transfers Case Citing Court Congestion

Nathan R. Hoeschen, Nov. 13, 2022
Transfer

We're sad to see it go, but honestly the case is probably happier in Florida
We're sad to see it go, but honestly the case is probably happier in Florida Joël de Vriend, Unsplash

A few weeks ago, we discussed a case where Judge Noreika transferred a trademark case under 1404, citing court congestion. This week, Chief Judge Connolly made a similar move, transferring a contract claim to Florida based largely on the relative congestion of the two courts.

The plaintiff in Arthrex, Inc. v. Nat'l Union Fire Insurance Co. of Pittsburgh, PA , C.A. No. 22-465 (D. Del. Nov. 8, 2022), was a Delaware entity, headquartered elsewhere and none of the defendants had any particular Delaware connection. As is often the case in a patent action, the facts of the dispute …

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Court Orders Three Mavexar-Related Plaintiffs to Produce Communications with Mavexar, Attorney Retention Agreements, Bank Account Statements, and Sworn Declarations Regarding Assets

Andrew E. Russell, Nov. 10, 2022
Mavexar NPE

Uh-oh.
Uh-oh. AI-Generated, displayed with permission

Shortly after today's hearing regarding compliance with Chief Judge Connolly's standing orders, the Court issued orders in each of the cases from the similar hearing last week, requiring production of a broad range of communications among the plaintiffs, Mavexar, and their attorneys.

The Court issued similar orders in each case, each setting forth the Court's concerns:

Whereas the testimony of witnesses and representations of counsel at the November 4, 2022 hearing give rise to concerns that include but are not limited to the accuracy of statements in filings made by [each plaintiff] with the Court and whether the real parties in interest are before the Court;

The Court then issued production of …

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Standing Order Hearings: Court Questions Head of NPE LLC Who Is Married to Attorney at Mavexar

Andrew E. Russell, Nov. 10, 2022
Mavexar Piercing the Corporate Veil

"This is how I'm going to explain to my wife why she should have an LLC that holds our company's patents." AI-Generated, displayed with permission

Chief Judge Connolly held another hearing today regarding compliance with his standing orders on litigation funding, this time exploring the relationship between NPE plaintiff Backertop Licensing LLC and MAVEXAR, the entity that is said to have created Backertop.

Last week's hearing involved testimony from a sales person and a restaurateur who owns a food truck, each of whom had been recruited by MAVEXAR to be the sole member of a patent assertion NPE, as an "investment" opportunity or a way to make "passive income."

Each "owner" received either 5% or 10% of the …

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The Next Litigation Funding Hearing is Thursday, November 10, 2022

Andrew E. Russell, Nov. 9, 2022
Mavexar Litigation Funding

Image offered without comment.
Image offered without comment. AI-Generated, displayed with permission

We've had an ongoing series of posts about the remarkable hearing that Chief Judge Connolly held last week regarding litigation funding.

I wanted to post a heads up that another hearing on that topic in the Backertop cases, C.A. Nos. 22-572 and 22-573, is set for Thursday 11/10 at 10:00 am in Courtroom 4b. So far, based on the docket, it looks like the hearing is likely to go forward.

Unlike Friday's hearing, tomorrow's involves only two related cases, and likely a single witness. But it may still be worth stopping in if you are regularly involved in these kinds of NPE cases.

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A Handy Transcript

Andrew E. Russell, Nov. 9, 2022
Contentions KB

Bookmarks
Chiara F, Unsplash

I thought I'd share an old transcript that has come in handy a number of times since it issued back in 2013, where Judge Andrews made a helpful ruling about how and when patentees must respond to conception date interrogatories—an issue that comes up frequently.

In Vehicle Interface Techs., LLC v. Jaguar Land Rover N. Am., LLC, C.A. No. 12-1285-RGA (D. Del.), the defendant filed a discovery dispute to compel a full response to an interrogatory asking for the date of conception and reduction to practice.

The patentee had responded, but the answer was not very helpful. According to the discovery dispute letter:

[The patentee] stated that the sole inventor . . …
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"Pleading Generally Precedes Discovery"

Nathan R. Hoeschen, Nov. 8, 2022
Amended Complaint

Pleading is the big duck, discovery is the little ducks.
Pleading is the big duck, discovery is the little ducks. Vlad Tchompalov, Unsplash

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 …

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