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 …
One of the more common District of Delaware questions you get as local counsel is "can we move to strike opposing counsel's (infringement or invalidity) contentions?"
That may seem like a simple question, but the answer depends many things, like: What is wrong with those contentions? How were our contentions in comparison? Which judge is this in front of? How long ago did they serve them? (And, sometimes, things like: Why are you asking this now, when we are two weeks from trial?)
Challenging contention disclosures can be tough even if you have what seem like fairly good arguments. The Court is generally not …
Yesterday, Judge Noreika transferred a trademark, false advertising, false designation of origin, and unfair competition case to the Northern District of Illinois. See Rockwell Automation, Inc. v. EU Automation, Inc., C.A. No. 21-1162-MN (D. Del. Oct. 27, 2022).
This is interesting because, to my knowledge, Judge Noreika has transferred few if any patent cases out of the District of Delaware—including when both parties are have strong ties to the transferee forum.
I thought it would be interesting to see how the Jumara factors played out in this trademark case compared to …
How, in the 8,000 year history of law, have we not come up with a better name than the "at issue" doctrine? I hesitate to call it the shame of our profession, but it's firmly in the running.
I pose some alternatives below. To make it clear, any highlighted words refer to the doctrine formerly known as "at issue." Feel free to use going forward -- creative commons or whatever.
This Will Go On For Longer Than You Think
Judge Burke had an interesting case regarding the sneaky peak doctrine. In Sensormatic Electronics, LLC v. Genetec (USA) Inc., the issue arose in the context of an inequitable conduct allegation, where defendants sought evidence about what exactly …
(d) Standards for Professional Conduct. Subject to such modifications as may be required or permitted by federal statute, court rule, or decision, all attorneys admitted or authorized to practice before this Court, including attorneys admitted on motion or otherwise, shall be governed by the Model Rules of Professional Conduct of the American Bar Association (“Model Rules”), as amended from time to time.
D. Del. Local Rule 83.6(d). According to the Judge Jordan, back in 2004:
[T]he ABA’s Model Rules of Professional Conduct, not the Delaware Rules of …
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