A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: 2023

Clear and Unmistakable

Nathan R. Hoeschen, April 6, 2023
Claim Construction

I was trolling though recent opinions in search of a blog post topic (you're welcome) when I stumbled upon a recent Markman order discussing disclaimer. Now normally Markman orders aren't the most fecund ground for a post. But seeing the pro forma language about how prosecution history disclaimer required a "clear and unmistakable" disavowal I had to ask myself—"do they ever find that?"

I don't know why I asked for it to be Baron Harkonnen, but I did and now you have to see it too
AI-Generated, displayed with permission

The answer, is "not really, no." Frequent readers will know that I normally do the last 10 opinions, because I have forgotten all the math I used to know and its easy to calculate the percentages. Here though, I looked through the last 10 and was still at 0. So I pressed on until we hit a winner at the 15th oldest decision. For those with calculators, that's a 6.7% success rate.

What really surprised me about this number was that I only had to go back 2 months to find 15 cases where a defendant had alleged disclaimer, given the abysmal success rate. I'll update this post the next time we get a winner to see if we can piece together a unified theory of what makes these arguments work.

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How to Insta-Waive Your Objections

Andrew E. Russell, April 5, 2023
R&R Objections to R&Rs

Look closely—down at the bottom, where the huge bolt of lightning meets the hill, are defendant's R&R objections
Look closely—down at the bottom, where the huge bolt of lightning meets the hill, are defendant's R&R objections Brandon Morgan, Unsplash

R&R objections can be a minefield for attorneys. First, the governing rules are fairly stringent, and are set forth in multiple places (including Local Rule 72.1 and a separate standing order). Second, I think it's fair to say that most judges are not eager to have to review another judge's work and potentially reverse it if they don't have to, so the rules for objections tend to be enforced.

Here are some examples of things that parties sometimes miss. The objecting party must:

  1. "[S]pecify the portions of the findings and recommendations to which objection is made and the basis for each objection, . . . supported by legal authority."
  2. Include a certification stating that "the objections do not raise new legal/factual arguments" or identifying good cause for new legal/factual arguments.
  3. Set forth its objections in a single, 10-page opening brief with no reply brief, and the page limit is generally strictly enforced.
  4. File courtesy copies of "of all filings (e.g., motions, briefs, appendices) associated with the matter to which the R&R"—this can be easy to miss, and can result in waiver.
  5. Identify the exact standard of review.

That last one, identifying the standard of review, is easier said than done. The standard of review for R&R objections can be tricky, because ...

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A Crab in a Corner

Nathan R. Hoeschen, April 4, 2023
Mavexar Litigation Funding

When I was young, I had a pet crab. Not a hermit crab, but a big honking giant land crab. He lived in a terrarium in my room and I would wave at him every day when I left for school. He would wave back. This is the best part of having a crab.

I Miss You Too Legs!
I Miss You Too Legs! Alejandro Alas, Unsplash

What you might not know about crabs, is that they're smart. They are curious creatures that will spend their whole day wandering around foraging. They will slowly stack rocks in one corner of their tank to make a ramp. They will specifically make this ramp in the corner of the tank that has the inlet for the water filter. They will (somehow) remove the clamps holding the top down and seize freedom at any cost. It's pretty much like the velociraptors in Jurassic Park.

Longtime readers will have guessed that this story is leading to a development in the Mavexar saga. And readers, I will not disappoint you. Just hours ago, Judge Connolly issued a memorandum order in the Nimitz case setting ...

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"[I]n the future, [the Court] will review with much more scrutiny if not skepticism the representations of these . . . counsel."

Andrew E. Russell, April 3, 2023

What a star chamber actually looked like, per Wikipedia.
What a star chamber actually looked like, per Wikipedia. Wikimedia Commons

On Friday, Chief Judge Connolly issued another star chamber opinion. We've talked before about how Chief Judge Connolly's efforts to enforce the rules to prevent over-redaction of sealed filings, including by unsealing nearly an entire docket and by appointing a special master at the parties' expense.

This time, the Court made clear that the reputations of the attorneys involved are at risk—not just the clients.

In Sonrai Memory Ltd. v. Hewlett Packard Enterprise Development LP, C.A. No. 22-1498-CFC (D. Del.), the parties had moved to seal a complaint and briefing related to a motion to dismiss. Both motions were unopposed, and the Court granted them …

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New Discovery Order in One of the Mavexar Cases

Andrew E. Russell, March 31, 2023
Mavexar Litigation Funding

Mavexar Crab

We haven't written about Mavexar for a while. But a new order today shows that the Court hasn't let up.

We discussed last year how, following a hearing in which the nature of Mavexar came out, the Court ordered the parties and attorneys in some of the Mavexar cases to submit to the Court a broad range of communications among the plaintiffs, Mavexar, and their attorneys.

Today, the Court issued a similar order in an additional case, Backertop Licensing LLC v. Canary Connect, Inc., C.A. No. 22-572-CFC (D. Del.). That case was the one at issue in the November 10 hearing, where the owner of Backertop testified that she is a paralegal who is married to …

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Dillegentsia

Nathan R. Hoeschen, March 30, 2023
Diligence Scheduling Order

Rule 16(b)(4) is deeply ingrained in the mind, body and soul of every DE lawyer. To modify the scheduling order, one must show good cause. Good cause, in turn, hinges upon the diligence of the movant.

More than 1,000 orders in DE patent cases analyze whether a party was diligent. Some have praised the herculean efforts of the parties (not a lot of those, honestly), while others cursed their lazy hides for daring hobble up the Courtroom steps (somewhat more common).

"Diligence" AI-Generated, displayed with permission

I have analyzed every single one to determine how often the Court found diligence.

I'm sorry that was a joke. We have a GoFundMe for an intern. Please donate if you would like that level of analysis. Instead I have looked at the last 10 such opinions and orders. Of those, a scant 3 found the movant diligent and granted the requested schedule extension, whilst 7 found the movant had delayed and denied the request.

Obviously this is a fact-dependent inquiry, but it's something to consider the next time you move for an extension.

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The Stuff of Nightmares: Plaintiff Makes Insufficient JMOL Motion During Trial, Waiving Its Post-Trial JMOL Motion Entirely

Andrew E. Russell, March 29, 2023
JMOL Waiver

Bye bye, JMOL motion
Bye bye, JMOL motion Ioana Cristiana, Unsplash

In most patent cases that make it through trial, the losing party files a post-trial motion seeking judgment as a matter of law (JMOL), asking the judge to override the jury and find for them instead. It seems fairly uncommon to see a case that went to trial and did not settle that doesn't involve a post-trial JMOL motion from one side or the other.

Under the federal rules, to file a post-trial JMOL motion under FRCP 50(b), you must first file a JMOL motion during trial under FRCP 50(a). That motion must be made before the case is is submitted to the jury, and must "specify the …

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Secrets, Secrets Are No Fun . . .

Nathan R. Hoeschen, March 28, 2023
Sealing Redactions

It seems like only yesterday I was discussing the rare case where a third party moved to unseal the docket in a DE case. In fact, it was 12 days ago—time flies when blogging.

Time flying
AI-Generated, displayed with permission

Well it happened again, and this time we have an opinion.

The intervenors in CBV, Inc. v. ChanBond, LLC, C.A. No. 21-1456 (D. Del. Mar 28, 2023) (Mem. Order) were shareholders in the defendant, Chanbond, who sought to unseal various and sundry filings including the complaint, answer, and briefing on a TRO. The parties (perhaps readers of the blog?) largely agreed to unseal the filings but insisted that the dollar amount of a confidential settlement agreement should remain redacted.

Typically, actual dollar amounts contained in confidential agreements are one of the few things that pass muster on a motion to seal. The twist was that the dollar amount had accidentally been filed publicly in a different case months earlier.

Billy tells secrets, it is his truest nature
Billy tells secrets, it is his truest nature AI-Generated, displayed with permission

Oops.

Nevertheless, the parties (as well as several third-party signatories to the agreement who submitted their own briefs) insisted that ...

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Bifurcation Patterns

Emily DiBenedetto, March 27, 2023
Damages Trial

Density Column
AI-Generated, displayed with permission

Earlier this month, Judge Williams denied a defendant’s motion to bifurcate a second patent trial in Cirba, Inc. et al v. VMware, Inc., C.A. 19-742, D.I. 1623 (D. Del. Mar. 7, 2023) (oral order). In that case, the patentee had won an initial victory at trial, but the Court later granted a motion for a new trial based on evidentiary issues.

The defendant moved to stay the second trial because nearly all of the patents at issue had been found invalid—or were in danger of being found invalid—during a pending re-exam proceeding. The parties finished briefing, but the Court has not yet ruled or heard oral argument on the motion to stay. …

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How Much is Too Much? The Answer: Three Discovery Dispute Teleconferences in Two Months (Involving Nine Disputes)

Andrew E. Russell, March 24, 2023
Discovery Dispute Congestion

"From now on, your discovery disputes will be heard at the summit . . . " Alexander Milo, Unsplash

It's always good to know the limits when it comes to discovery disputes. In some cases, parties just can't seem to work together on discovery, and the parties end up bringing a lot of disputes.

At some point, the number of disputes may push the Court over the line. Famously (in Delaware—so perhaps not "famously" at all), former Chief Judge Sleet used to limit parties to three discovery disputes in patent cases before requiring them to seek leave. I don't know of any similar explicit limits set by any of our current judges, but pushing things too far can still …

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