A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: 2024

ITC Opinions Are Not Evidence

Nathan R. Hoeschen, Jan. 4, 2024
Summary Judgment

The ITC is just, constantly issuing opinions. It's always "import this" and "don't export that." Frankly, I don't have the time for it.

That sands through the hourglass, so are the [copyrighted material redacted]
That sands through the hourglass, so are the [copyrighted material redacted] Nathan Dumlao, Unsplash

On this historic day, however, Judge Wolson struck back against the relentless tide of ITC opinions. An act for which we at IP/DE will forever be grateful.

The issue came up in the context of a summary judgment opinion in Wirtgen America, Inc. v. Caterpillar, Inc., C.A. No. 17-770-JDW-MPT (D. Del. Jan 4, 2024) (Mem). The plaintiff there had previously prevailed at the ITC on one of the patents, and the ITC had issued (sigh) an exclusion order.

The plaintiff then moved for summary judgment of infringement, citing in support only the ITC's written decision. Judge Wolson, denied the motion:

The ITC’s decision is not factual evidence. It is, instead, a decision that weighs evidence and applies the law. Wirtgen’s reliance on the ITC decision as the sole evidence to support its argument means that I could deny the motion just for a failure of proof. But there are other problems as well.
Even if I treated the ITC’s decision as evidence, it would not suffice to carry Wirtgen’s burden. The decision is not binding on me. And the decision came in a different procedural posture. The ITC weighed the parties’ evidence and reached a conclusion, much like I would do after a bench trial. But, at this stage of the proceedings, I can’t weigh the evidence. Instead, I have to credit any contrary evidence that Caterpillar offers, and it has offered evidence . . .

Wirtgen, C.A. No. 17-770-JDW-MPT, at 10.

Let this serve as a reminder that we all have to keep fighting the good fight.

(Eds. Note - the ITC is actually pretty cool by the standards of IP courts and practitioners)

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"Courts Do Not Declare Patents to be Eligible Under § 101"

Andrew E. Russell, Jan. 3, 2024
§ 101 Eligibility

"Not invalid" may be a double negative, but it's definitely not the same as "valid." Markus Spiske, Unsplash

Chief Judge Connolly issued a short opinion this morning denying a motion for summary judgment that a patent was not patent ineligible, in C.R. Bard, Inc. v. Angiodynamics, Inc., C.A. No. 20-1544-CFC-SRF (D. Del. Jan. 3, 2024).

In short, the patentee had previously succeeded on the issue of § 101 ineligibility at the Federal Circuit, which reversed a lower-court finding of ineligibility and held that:

[T]he asserted claims in Bard’s three patents are directed to eligible subject matter under § 101.

C.R. Bard, Inc. v. Med. Components, Inc., C.A. Nos. 2022-1136, 2022-1186, 2023 U.S. App. LEXIS …

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'Cause After All, He's Just A Man

Nathan R. Hoeschen, Jan. 2, 2024
Protective Order

During our long break, when Andrew and I languished upon a beach, trading daiquiri recipes across a bridge table whilst a jazz band played Auld Lang Syne on repeat (they seemed quite uncomfortable in their tuxedos), Judge Bryson brought us an opinion with a new twist on an old PO dispute.

Is this what my life would be like were it not for the blog?
Is this what my life would be like were it not for the blog? AI-Generated, displayed with permission

The Plaintiff in Rheault v. Halma Holdings Inc., C.A. No. 23-700-WCB, was not a corporation. He was just a dude . . . named Rheault. The parties disputed whether Rheault could have access to all of the information produced by the defendants in the action, or if there should be some separate attorney's eyes only tier that he was not privy too.

As Judge Bruson noted, a dispute about whether a particular person should have access to the most confidential documents usually depends upon whether that person is a "competitive decisionmaker."

The question whether a particular individual should be allowed access to highly confidential materials has arisen in a number of cases. Such cases often involve the question whether certain employees of a party, such as in-house counsel, should be permitted access to materials with that designation. The answer to that question typically turns on whether the employees in question are involved in competitive decisionmaking on behalf of the party. If so, those employees are typically barred from having access to materials designated as highly confidential. If not, they are often allowed access to those materials.

Rheault v. Halma Holdings Inc., C.A. No. 23-700-WCB, at 2 (D. Del. Dec. 22, 2023) (Mem. Op.)

Here, however, Rheault was a guy. Presumably he makes his own day to day decisions about whether to go to Arby's or Fudruckers (Arby's), but he wasn't involved in the operation of any particular company (the dispute actually centered upon the contract selling his company to the defendants).

Judge Bryson found this point dispositive, at least in the absence of any evidence that he would rejoin the market imminently and compete with the defendants:

Given that there is no evidence that Mr. Rheault intends to resume activity in his former field of business and that the defendants have not shown any other reason why Mr. Rheault should be denied access to the materials designated as “Highly Confidential—Attorneys’ Eyes Only,” I conclude that the defendants have not satisfied their burden of showing entitlement to the restrictive protective order they have requested.

Id. at 7.

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