A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: 2023

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愚木混株 cdd20, Unsplash

It's easy to think that, once an opposing party takes a position on the record as to a legal issue, it can never change that position. Not so.

Today Judge Andrews addressed an argument that defendants who lost at trial were nonetheless bound by their "judicial admissions," thus preventing them from taking a (purportedly) contradictory position after trial. Not surprisingly, the defendants disagreed:

Plaintiff argues that Defendants made representations before and at trial that directly contradict positions that Defendants must take in order to prove an interference-in-fact. . . . Plaintiff notes that Defendants' representations were "judicial admissions." . . . . Therefore, Plaintiff argues, Defendants cannot establish an interference-in-fact between the '537 patent and the '207 patent, and I must dismiss the counterclaim against the '537 patent as moot for lack of subject matter jurisdiction.
Defendants respond that Plaintiff does not invoke estoppel—or any other legal theory—that would support dismissing their claims. . . . Defendants add that, in any case, they are not estopped from abandoning their trial positions, nor from invoking theories that Plaintiff presented at trial, because Plaintiff prevailed over them at trial.

The Court found the the defendants were ...

Travel
Dino Reichmuth, Unsplash

We wrote last month about the "mansplaining brief," which caught some eyes around town when it (and the declaration attached to it) accused the Court of "gender harassment and discrimination."

We set out the full background in our post, but generally the Court ordered the sole member of a Mavexar-related LLC to attend a hearing here in Delaware.

She then filed a motion for reconsideration offering numerous objections, including among other things that (1) the Court had no power under FRCP 45 to compel her attendance, since she lives in Texas; and (2) that she is a working mother and therefore unable to travel to Delaware.

(She also said that she "feels harassed" by …

All across the district, defendants silenty wonder:
All across the district, defendants silenty wonder: "Oh crap, is this gonna be a thing now?" NASA, Unsplash

Here's one you don't see every day. Back in March, Judge Burke granted a § 101 motion to dismiss as to the claims of two of the six asserted patents in Topia Technology, Inc. v. Egnyte, Inc., C.A. No. 21-1821-CJB (D. Del. Mar. 31, 2023).

In that opinion, the patentee did not dispute that the claims were directed to the abstract idea of synchronizing a file across a network:

Plaintiff, for its part, does[ not] dispute that synchronizing multiple versions of a file across network computers is an abstract idea, and the Court agrees that it is. Again, …

You don't get to pick your jobs in the P.I. biz. A good gumshoe takes what walks in the door, and the only questions he asks are "how much?" and "permanently?" The only answer he'll take is a raised eyebrow and and that money gesture when you rub your thumb against two fingers.

Hamburglar was of the old school. 40 years ago he had a reputation that could make a clown go back into his little car with all his friends and drive off without so much as a honk. When the doc said his arteries were starting to look looked like string cheese, he put that all behind him - hung up his shingle and started trying to solve …

Yeah. Everybody can see the frog.
Yeah. Everybody can see the frog. Kieran Wood, Unsplash

As Delaware counsel, I sometimes have to say something along the lines of "the Court is going to see right through that" or "nobody is as sly as they think they are."

Usually this is in the context of something like slipping wholesale invalidity arguments into a claim construction brief (seriously? You think you are going to win SJ of anticipation at claim construction?) or "just flagging" a completely unrelated and irrelevant issue in a discovery dispute.

I saw an example of this last week in Speyside Medical, LLC v. Medtronic Corevalve, LLC, C.A. No. 20-361−GBW−CJB, D.I. 290 (D. Del. Jun. 26, 2023).

In Speyside, the …

The Delaware bar lately, arguing over redactions to discovery dispute letters
The Delaware bar lately, arguing over redactions to discovery dispute letters Hasan Almasi, Unsplash

Based on the redaction disputes I've seen in couple of cases lately, some of us here in Delaware have forgotten that the high Avandia standards for access to public materials do not apply to discovery dispute letters and their attachments, as Judge Fallon confirmed last month:

[T]he common law right of access does not extend to discovery motions and supporting materials because the "underlying discovery material itself is not a judicial record." Genentech, Inc. v. Amgen, Inc., C.A. No. 17-1407-CFC et al., 2020 WL 9432700, at *3 (D. Del. Sept. 2, 2020) (citing Leucadia, Inc. v. Applied Extrusion Techs., Inc., …

Stop
Markus Spiske, Unsplash

We've noted before that parties routinely stipulate to extend the deadline to answer in D. Del. cases. You may have wondered—is there a limit to the number of times the parties can stipulate to extend the answer deadline?

Now we have the answer: Yes, at least for Judge Williams. Here is how he reacted when parties filed their ninth stipulation to extend the answer deadline:

ORAL ORDER: There have been nine (9) Stipulation and Proposed Orders entered in this case granting Defendant an extension of time for it to answer, move, or otherwise respond to the Complaint. See D.I. 20; D.I. 21; D.I. 22; D.I. 23; D.I. 24; D.I. 25; D.I. 26; D.I. 27; D.I. …

Breaking news from our favorite court! Our own Magistrate Judge Hall has been nominated to fill the Judge Andrews' vacancy once he takes senior status at the end of this year.

Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Andrew Russell, CC BY 2.0

As with Judge Williams, the White House provided a helpful and succinct summary of Magistrate Judge Hall's qualifications: “Judge Jennifer L. Hall has served as a United States Magistrate Judge on the U.S. District Court for the District of Delaware since 2019. Previously, Judge Hall served as an Assistant U.S. Attorney in the U.S. Attorney’s Office for the District of Delaware from 2011 to 2015 and served as Chief of the office’s …

Hercules Slaying the Hydra

Judge Connolly’s new order provides a concise summary of the Mavexar timeline and announced the date of a long-delayed evidentiary hearing in the Creekview case.

Mark your calendars for Friday, 7/21 at 9:00AM in Courtroom 4B. This hearing was originally slated for December 6, 2022, but it never happened.

Last fall, Judge Connolly ordered a series of evidentiary hearings in approximately a dozen cases to determine whether LLC plaintiffs had complied with his standing order.

According to the Court in his newest order, the first hearing in that series, involving Nimitz, Mellaconic, and Lamplight:

raised serious concerns that the parties may have made inaccurate statements in filings with the Court; that counsel, including Mr. Chong, may have …

Drug patents are legion, and they are prone to flock together. In ancient times, a patent would describe A molecule that cured . . . the dancing plague (?) and that would be the end of that. But one bright fellow after another came up with new ways to extend the life of a drag patent, from formulation, to method of treatment, to the new hip thing -- interaction patents.

The gist of these patent claims is pretty basic

  • You've got a drug that you normally give in amount A.
  • You've got atypical patient with whose taking drug B, or has condition C (these pretty much always have something to do with the liver, don't ask me why, I was …