A Blog About Intellectual Property Litigation and the District of Delaware


Entries for author: EDiBenedetto

March Jury Trial Update

Emily DiBenedetto, Feb. 21, 2022

marcin-skalij-lfCm8yyTGIo-unsplash
Marcin Skalij, Unsplash

This month, COVID has not directly caused jury trial delays for the District of Delaware, though we don't know of any jury trials that went forward in February.

In the next few months, the Court has a busy docket, filled with patent cases and sprinkled with cases before visiting judges. In particular, Judge L. Felipe Restrepo, sitting by designation from the 3rd Circuit Court of Appeals, is scheduled to handle three out of the sixteen upcoming cases. Judge Stark is also scheduled to handle two upcoming jury trials, though this appears likely to change given his confirmation to the Federal Circuit.

February Jury Trials Off the Calendar

None of the expected February jury trials went forward, though no delay or cancellation was due to COVID.

  • 2/7/2022: Skeans v. Key Commercial Finance LLC, C.A. 18-1516-CFC-SRF (D. Del.): In this fraud/estate case, Plaintiff requested that the in-person pretrial conference be adapted into a virtual one after Plaintiff’s residential community went into a COVID lockdown, preventing his physical attendance. (D.I. 117). Thereafter, the trial was postponed due to "a change in the Court's trial calendar," with the parties' consent.
  • 2/14/2022: Chugai Pharmaceutical Co., Ltd. v. Alexion Pharmaceuticals, Inc., C.A. 18-1802-MN (D. Del.): The parties stayed this five-day patent trial at the last moment, according to the docket. The Court previously rescheduled it from January due to COVID concerns for witnesses and attorneys traveling from outside the U.S. (D.I. 399).
  • 2/22/2022: Deshields v. JR Rents Inc., C.A. 20-1626-MN-SRF (D. Del.): Stipulated ...
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February Jury Trial Update

Emily DiBenedetto, Jan. 26, 2022
Congestion COVID-19

Masks
Isaac Quesada, Unsplash

February Jury Trials

After completing all planned December jury trials uninterrupted by COVID-19, the January docket became lighter after the Court continued several trial dates to later this year due to COVID-19 concerns. One of these continued trials, a patent case, was rescheduled to February; the Court also has three other jury trials on the calendar for next month.

In December, the Court reauthorized the use of video and telephone conferencing pursuant to the CARES Act. Relatedly, Governor Carney reinstituted a mask mandate, requiring individuals in Delaware to wear masks while in public spaces, with select exceptions.

Review of December Jury Trials

In our November update, we identified five upcoming December jury trials. Three proceeded as …

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The Scope of "Substantially Similar" Product Accusations

Emily DiBenedetto, Dec. 14, 2021
Accused Products Contentions

Shades of Coffee

Delaware’s Default Standard for Discovery requires that plaintiff “specifically identify the accused products and the asserted patent(s) they allegedly infringe” within 30 days of the Rule 16 Scheduling Conference. So, if the accused products were not identified in the complaint itself, they must be identified early in discovery. But what is the scope of discovery on products that were not specifically identified in the complaint or accused before the Default Standard deadline?

Can plaintiffs seek information regarding “substantially similar” models? Generally, this question is answered on a case-by-case basis using three factors found in in Invensas Corp. v. Renesas Elecs. Corp., 287 F.R.D. 273, 282 (D. Del. 2012):

(1) [A]s to relevance, the specificity with which the plaintiff has articulated how the unaccused products are relevant to its existing claims of infringement (and how they are thus “reasonably similar” to the accused products at issue in those claims);
(2) [W]hether the plaintiff had the ability to identify such products via publicly available information prior to the request; and
(3) [T]he nature of the burden on defendant(s) to produce the type of discovery sought.

In an order last week, Judge Fallon denied ...

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A Global FRAND Case Hits Delaware

Emily DiBenedetto, Nov. 21, 2021

Many Flags
Many Flags Nick Fewings, Unsplash

The Backstory

A chase for SEP licenses travels around the world and finally lands in Delaware.

We discussed this Continental v. Nokia opinion last week, but we thought it was worth another comment, because this is a fascinating case at the epicenter of a global FRAND battle. Even more interesting: this opinion illustrates a widening divide between American, UK, and Chinese courts in their comfort level with setting global FRAND rates.

A FRAND Dispute of the Hold-Up Variety

At its core, this is a dispute between German and Finnish companies, via and including their American subsidiaries. Continental asked a U.S. court to determine a fair licensing payment for their use of Nokia’s patented 2G, …

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November Jury Trials

Emily DiBenedetto, Oct. 22, 2021
COVID-19 Trial Calendar

This year's November begins on a Monday.
Theodorus van Hoytema

Remaining October Jury Trials

  • 10/25/2021: Boston Scientific Corp. v. Nevro Corp., C.A. 18-644-CFC-CJB (D. Del.): This patent jury trial is calendared to start on October 25 before Judge Connolly.
  • 10/25/2021: CareDx, Inc. v. Natera, Inc., C.A. 19-662-CFC-CJB (D. Del.): The parties in this trademark case will begin jury trial before Judge Connolly on October 25.

Upcoming November Jury Trials

One patent case has a long-standing trial date that appears intact, but another patent case appears close to settling.

  • 11/01/2021: Novel Drug solutions, LLC v. Harrow Health, Inc., C.A. 18-539-MN (D. Del.): Defendant proposed rescheduling the pretrial conference for an earlier date, to which the Plaintiff agreed (D.I. 368), but Judge Noreika declined the rescheduling. D.I. 369. This contract case is set to proceed for five days on November 1.
  • 11/01/2021: Shure Incorporated v. Clearone, Inc., C.A. 19-1343-RGA-CJB (D. Del.): Judge Andrews has resolved multiple merits issues (D.I. 571; D.I. 619; D.I. 621) after adopting the Magistrate Judge’s recommendations to deny most of the parties' dispositive motions. The case still appears on track to proceed to trial. ...
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October Update on Upcoming D. Del. Jury Trials

Emily DiBenedetto, Oct. 11, 2021
COVID-19 Trial Calendar

Upcoming October Jury Trials

Of the six jury trials planned for October, four remain on the schedule as of now, including one patent and one trademark action. One patent jury trial was postponed for a second time this month due to the COVID-19 travel ban.

  • 10/12/2021: USA v. Crocker, C.A. 17-10-LPS (D. Del.): This criminal case was originally scheduled for a jury trial before Judge Stark on October 5, but was postponed at the last minute, likely due to a change in counsel. The trial is now set for October 12.
  • 10/18/2021: Parkell v. Frederick, C.A. 15-718-SB (D. Del.): The parties in this prisoner civil rights case agreed to jury trial before …
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August Update on Upcoming D. Del. Jury Trials

Emily DiBenedetto, Aug. 12, 2021
COVID-19 Trial Calendar

Autumn trials are adding up
Kelly Sikkema, Unsplash

The District of Delaware has many more jury trials scheduled in the next two months than it has in recent months, and several of the upcoming trials were originally postponed for COVID-19 reasons. The September calendar looks particularly busy at the moment, but several case dockets indicate steps toward resolving before trial, suggesting that several of these trials may not be on the calendar much longer.

Remaining August Jury Trials

District of Delaware continues to permit multiple simultaneous jury trials, as evidenced by the three trials to begin on the same day this month:

  • 8/16/2021: McClanahan v. Priority 1 Air Rescue Operations Arizona, LP., et al., C.A. 18-1237-CFC-SRF (D. Del.): …
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Standing with an Exclusive License

Emily DiBenedetto, Jan. 5, 2021

Patent Lawsuit
Libby Levy, CC BY-SA 2.0

Having an exclusive patent license should mean that the licensee has the right to enforce that patent against potential infringers, right? Yes, but the license has to be exclusive.

In a recent opinion, Judge Connolly held that if another entity—even an affiliate company—has the ability to grant a patent license to the defendant, then the plaintiff did not possess standing to bring a patent infringement action against that defendant without also joining the other entity.

Exclusive Licenses: Implied vs. Explicit

There are multiple varieties of "exclusive" licenses. A party may have an implied exclusive license, for example, if a contract gives the licensee the sole right to perform and prohibits the licensor from …

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We Three Agree — Me, Myself, and I (Or: Court Strikes Expert's Opinion That Secretly Relied On His Own Anonymous Writing)

Emily DiBenedetto, Nov. 19, 2020
Rule 37 Sanctions

Mirrored
Mirrored Alex Iby, Unsplash

Last month, Judge Burke struck "a substantial portion" of an expert's infringement report after the expert relied on his own anonymous peer review to prove infringement, without disclosing that he had been the author.

The truth did not come out until the deposition.

The Expert Secretly Relied On His Own Prior Anonymous Writing

Plaintiffs in this action allege infringement only via the doctrine of equivalents, arguing that the differences between the accused drug and the claimed drug are insubstantial. Defendant argues that the differences are substantial, relying in part on a 2016 article showing that the accused drug performs significantly better than the claimed drug.

Plaintiffs' expert reports criticized the 2016 article based on two …

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