A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: November 2024

If You Want to Preserve Your Arguments for Trial, Put Them In the Pretrial Order

Andrew E. Russell, Nov. 6, 2024
Trial Pretrial Order

Danger
Micaela Parente, Unsplash

This may seem obvious to practiced litigators, but the pretrial order is no joke. It defines the scope of the claims and defenses at trial, and omitting things from it is a very risky proposition. Be careful.

That's why parties sometimes end up with ridiculously long pretrial orders—they don't expect anyone to read them front to back, but they want to make sure nothing is waived.

We saw another example of this yesterday in In Re: Ozempic (Semaglutide) Patent Litigation, C.A. No. 22-MD-3038-CFC (D. Del.). There, the defendants intentionally omitted its obviousness-type double patenting invalidity defense from the pretrial order, in light of a recent Federal Circuit case clarifying the rules …

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Have Patent Case Referrals to Visiting Judges Slowed?

Andrew E. Russell, Nov. 4, 2024
Congestion DED

ChatGPT comes through again...
ChatGPT comes through again... AI-Generated, displayed with permission

At the FCBA's 2024 Bench and Bar, some of the speakers mentioned that referrals to visiting judges referrals to should be slowing. I've noticed that that seems to be correct — it feels like there have been fewer referrals to visiting judges lately.

Some basic Docket Navigator searches seem to confirm it. I found zero new referrals to visiting judges in the last three months (not counting related-case referrals). That's the longest gap we've had this year, after batches of visiting referrals in January, February, April, July, and on August 1. But Docket Navigator also says that there were even longer gaps last year, including one from January - May and another …

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Patentee's Delay in Moving to Amend Infringement Contentions Costs Them the Opportunity to Add 40 Accused Products—Even Though Fact Discovery Has Not Ended

Andrew E. Russell, Nov. 1, 2024
Accused Products Stay Pending IPR

The apparent state of the patentee's case after the Court's decision.
The apparent state of the patentee's case after the Court's decision. Jason Mavrommatis, Unsplash

Before you get too excited, defendants, this case involved a scheduling order using Judge Connolly's form, which provides only a single round of infringement and invalidity contentions, and explicitly requires good cause to amend.

Most District of Delaware scheduling orders include two rounds of contentions (initial and final), with the second round typically coming around the close of fact discovery. It is unlikely to be as difficult to amend in cases like those.

Regardless, I thought this was an interesting result worthy of a post. In Cognipower LLC v. Fantasia Trading, LLC, C.A. No. 19-2293-JLH-SRF (D. Del.), the Court stayed the case …

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