A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: October 2024

A Verdict Divided Cannot Stand

Nathan R. Hoeschen, Oct. 3, 2024
JMOL General Verdict

I find all of my best posts in footnotes.

They are the home seemingly idle musings about the scope of the law and arguments that might have been made in a better world.

There is a freedom in the foot.

AI-Generated, displayed with permission

Judge Wolson had a particularly striking footnote in his post-trial opinion in Med-El Elektromedizinisch Gerate GES.M.B.H. v. Adv. Bionics, LLC, C.A. No. 18-1530-JDW (D. Del. Oct. 2, 2024), which dealt with an important issue that I had not seen before in the district.

The plaintiff had gone to trial on both literal infringement and infringement under the doctrine of equivalents and for both induced and contributory infringement. The verdict form, however, did not …

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Tip: Remove CM/ECF Headers When Re-Filing Old Documents

Andrew E. Russell, Oct. 2, 2024
Litigation PACER

When re-filing things that were pulled from PACER, the Court has said that parties should remove the old CM/ECF headers:

CORRECTING ENTRY: The redacted public version of D.I. 157 at D.I. 161 has been replaced with a version that does not contain CM/ECF headers. Counsel is reminded to remove CM/ECF headers from previously-filed documents when filing.

ESCO Group LLC v. Deere & Company, C.A. No. 20-1679-WCB (D. Del. Feb. 9, 2023).

That way, when the document is later pulled from the docket, you don't get the overlapping and unreadable headers at the top.

If you don't redact them, it can end up looking something like this:

I believe it used to be possible to remove these …

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Can You Really Own A Secret?

Nathan R. Hoeschen, Oct. 1, 2024
DTSA Trade Secret Misappropriation

Short answer - yes, obviously.

Long answer - also yes, also obviously, but the timing is important.

AI-Generated, displayed with permission

The issue came to the fore in I-Mab Biopharma v. Inhibrx, Inc., C.A. No. 22-276-CJB (D. Del. Sept. 19, 2024) (Mem. Ord.). I-mAB is a DTSA action alleging the theft of about a dozen separate trade secrets. A few months back, the plaintiff went through a restructuring that resulted in several related entities now owning some or all of the trade secrets. The plaintiff then moved to add these entities as co-plaintiffs. Judge Burke denied the motion due to the potential for delay, given that the case was scheduled for trial int he near future.

Unsurprisingly …

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