A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: 2024

Order Of Operations

Nathan R. Hoeschen, July 9, 2024
Bond Preliminary Injunction

If you've spent way too much time on the internet lately, you'll likely have seen way too many memes about how kids today don't understand the order of operations. The typical format is some bookface (tm) post along the lines of:

999,999 out of 1,000,000 people get this wrong:
3 + 4(3+2) - 2 X 3 = ?
  1. 17
  2. The darkness at the end of all time
  3. 97
  4. (audible belch)

And then there's someone confidently giving the wrong answer.

"Remras!" Camylla Battani, Unsplash

Of course, the correct answer can only be arrived at by following the prescribed order of operations. This same concept comes up quite often in civil procedure, but the application is often less straightforward than good old …

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D. Del.'s New Magistrate Judge Announced!

Andrew E. Russell, July 8, 2024
Congestion Judges

District Court Seal

We heard from the Court last week that it has selected a new magistrate judge for the District of Delaware: Eleanor G. Tennyson.

The announcement describes her background:

The United States District Court for the District of Delaware is pleased to announce its selection of Eleanor G. Tennyson as a United States Magistrate Judge. Ms. Tennyson fills the position vacated by Judge Jennifer Hall upon Judge Hall’s elevation to the District Court.
Ms. Tennyson is an honors graduate of Grinnell College and received her master’s degree in chemistry from the Clemson University Graduate School of Chemistry. Ms. Tennyson earned her law degree from the University of Iowa College of Law where she was managing editor of the Iowa Law Review. …
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Court Orders 3-Day Deposition of Deponent Who "Created All 643 Trade Secrets at Issue"

Andrew E. Russell, June 24, 2024
Depositions FRCP 30(b)(1)

"Whatcha doin'?" "I'm writing out my 543rd trade secret. One hundred more to go." AI-Generated, displayed with permission

In my experience it's fairly uncommon to see a party get multiple days of deposition time with a fact witness deponent, outside of a few recurring circumstances (e.g. translated depositions). That's why I thought it was worth pointing out the ruling unsealed today in Gemedy, Inc. v. The Carlyle Group, Inc., C.A. No. 23-157-CFC-SRF (D. Del. June 7, 2024).

In Gemedy, plaintiff alleged misappropriation of 643 trade secrets, all authored (or co-authored, for 11 of them) by one person over an eight-year period. The defendant sought to depose that one person for four days, given their scope of …

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Court OK's Intent Requirement in Apparatus Claim; Holds that Intent Means the Designer's Intent, Not the User's

Andrew E. Russell, June 22, 2024
Indefiniteness Claim Construction

Not this kind of
Not this kind of "virtual" Lucrezia Carnelos, Unsplash

Yesterday, in Datacore Software Corp. v. Scale Computing, Inc., C.A. No. 22-535-GBW (D. Del. June 21, 2024), the Court issued fascinating opinion rejecting an indefiniteness argument for apparatus and method claims that included an "intent" requirement.

The claims at issue relate to allocating drive space on computer disks. The patentee explained in the specification that the system involves defining multiple virtual disks that can, collectively, be larger than the actual physical space available (e.g., in a sense, they overlap):

One advantage of the present invention is that the physical storage devices that are placed into a storage pool do not need to add up to the size of …
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Redactions Forgiven

Nathan R. Hoeschen, June 20, 2024
Redactions

In the past, I have been (rightfully) accused of promising to update the blog on further developments and then just forgetting about it.

Well naysayers, say nay no more.

I'm looking at you (insert pun)
I'm looking at you (insert pun) Daniel Bonilla, Unsplash

Today's post is an update on the frightening saga of redactions in Greenthread, LLC v. ON Semiconductor Corp., C.A. No. 23-443-RGA , D.I. 88 (D. Del. Apr. 30, 2024)(Oral Order), where you might recall Judge Andrews issued this ominous order in response to a party redacting exhibits in full:

At this point, I cannot find that Plaintiff has been operating in good faith. Thus, I will set a show cause hearing at which I will consider issuing a sanction of $10,000 to $100,000. Before I set a date for that hearing, I need two things: (1) Plaintiff has ten days to give the redactions on Exhs. B, F, G, H, and I one more try; and (2) I need Plaintiff to identify the lawyer who is responsible for the significant waste of my time dealing with this issue.

Id.

Since then the plaintiff filed a letter explaining its reasoning and requesting that the Court "reconsider whether it will hold a hearing to show cause or require Greenthread to publicly name an attorney involved in this issue." Id., D.I. 90 at 3.

In support, the plaintiff largely ...

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Stipulation, Smipulation

Nathan R. Hoeschen, June 18, 2024
Judgment

In a modern patent case -- with dozens of claims and zillions of similar accused products -- there are innumerable possible permutations of infringement and invalidity outcomes.

This can make it pretty difficult to craft a stipulation on undisputed issues.

The image generator I was using is now behind a paywall so I'm trying out new ones. Expect some more cursed illustrations like this for the next little while
The image generator I was using is now behind a paywall so I'm trying out new ones. Expect some more cursed illustrations like this for the next little while AI-Generated, displayed with permission

This was the hard lesson in Janssen Pharms, Inc. v. Tolmar, Inc., C.A. No. 21-1784-WCB, D.I. 198 (D. Del. June 13, 2024). In that ANDA case, the defendant had stipulated that "if any of claims 1–7, claim 15, and claims 17–21 (as dependent from claims …

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Reminder: You Must Ask to Seal the Hearing or Teleconference When Either Side Discloses Confidential Information

Andrew E. Russell, June 17, 2024
Sealing Motion to Seal

Secret
Paolo Chiabrando, Unsplash

Given how easy it is to seal information on the docket in Delaware, parties often don't think too much about the fact that they are going to discuss confidential information at a hearing, and may not want to interrupt the process to seek to seal the courtroom. And parties rarely seek to seal teleconferences, if only the parties are on.

But recent orders have made clear that if you may need to later seek to seal the transcript of a teleconference, hearing, or trial, the only safe thing to do is to request to seal the proceeding. This is true even if you are certain that only the parties are on the line.

We saw this …

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Court Rejects Argument That Searching with Search Terms Absolves Accused Infringer of Production of "All" Technical Documents—Including Those that Don't Hit on Terms

Andrew E. Russell, June 15, 2024
Default Standard Document Production

Source Code
Markus Spiske, Unsplash

Over 10 years ago, the District of Delaware adopted its "Default Standard" for discovery, which sets forth several basic rules for discovery, particularly in patent actions.

One of the rules is the requirement to produce "core technical documents" early in the case:

Within 30 days after receipt of the [list of accused products and asserted patents], each defendant shall produce to the plaintiff the core technical documents related to the accused product(s), including but not limited to operation manuals, product literature, schematics, and specifications.

Pretty quickly after its adoption, the Court held that this includes non-public documents, after parties started trying to skirt the rule by dumping user manuals on the patentee.

These days, …

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5-Body Problem

Nathan R. Hoeschen, June 13, 2024
Meet-and-Confer Discovery Dispute

Bringing a discovery dispute is a bit of a 3-body problem. At any given time, you've probably got a half dozen complaints with what the other side is doing. When one boils over into a dispute you have to grapple with whether you should just bring all of them—and risk looking unreasonable—or just address the most pressing and risk having to raise serial disputes, which might look even worse. The push and pull can quickly become insoluble.

Guillermo Ferla, Unsplash

Luckily, we got an Order from Judge Burke this week that should make this calculus slightly easier going forward.

The defendants in Bardy Diagnostics, Inc. v. Vital Connect, Inc., C.A. No. 22-351-CFC-CJB, D.I. 97 (D. Del. June 11, 2024) (Oral Order) brought the first discovery dispute of the case (by either party) via judge Burkes usual procedure of filing a letter listing the disputes.

The disputes read as the usual humdrum list of custodians not searched and rogs insufficiently answered. The only thing out of the ordinary, is that there were 5 of them included in the letter.

Judge Burke responded to the request for a teleconference the next day with ...

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