A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Congestion

Judge Noreika Continues Practice of Sometimes Requiring Parties to Seek Leave Before File Daubert Motions

Andrew E. Russell, July 28, 2022
Summary Judgment Congestion

Schedule issues
Towfiqu barbhuiya

We've recently flagged Judge Noreika's evolving practice of sometimes requiring parties to seek leave before filing summary judgment or Daubert motions. It doesn't seem to happen in every case, and so far the Court has often granted leave for at least one summary judgment or Daubert motion in each case. But it's worth keeping in mind if you have a case before Judge Noreika.

Yesterday, we saw a new variation on Judge Noreika's previous orders on this issue. She specifically noted that the trial was a bench trial (it is an ANDA case):

ORAL ORDER re . . . Stipulation and Proposed Order - WHEREAS, the parties have submitted a proposed stipulation that includes, inter alia, new …
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WDTX Begins Random Patent Case Assignments: Will More Cases Be Coming to Delaware?

Andrew E. Russell, July 26, 2022
WDTX Congestion

Looks like the sun is setting on Waco, TX
Looks like the sun is setting on Waco, TX Jed Owen, Unsplash

We're a day late on this, but it could be major news for Delaware patent litigators: the Western District of Texas is ending its practice of sending all patent cases filed in Waco to Judge Alan Albright.

Previously, all cases filed in Waco, TX were assigned to Judge Albright, a former patent litigator. He has favorable rules for resolving cases quickly and putting pressure on accused infringers, although I'm not sure that they are quite as tilted towards patentees as Law360 makes them out to be.

According to Law360, Judge Albright received 23% of all patent lawsuits in 2021. That's a lot!

We'll have to see …

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District of Delaware's 2022 Annual Report: Updates on Judge Williams' Timing, Court Caseload

Andrew E. Russell, July 25, 2022
Annual Report Congestion

Annual Report 2021
U.S. District Court

We wrote recently to report about the District of Delaware FBA's annual meeting, where the Court updated local practitioners about the state of the Court and upcoming changes. We promised an update when the Court issues its 2022 Annual Report.

Well, here is that update! The report is attached below in full. Some highlights include:

  • The report notes that the last five judges nominated to the District of Delaware took their oaths of office and entered duty within two weeks of confirmation by the Senate. The Senate confirmed Judge Williams on July 20, 2022. Doing the math, if history repeats itself, we should see Judge Williams start by Wednesday August 3, 2022. That's good news …
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Updates from the Annual FBA Meeting, Including Potential Filing Deadline Change and D. Del. Local Rules Update!

Andrew E. Russell, July 13, 2022
Court Announcement Congestion

Checklist
Glenn Carstens-Peters, Unsplash

Today was the Federal Bar Association's annual luncheon, an annual event where the Chief Judges give updates on the status of Delaware's District and Bankruptcy courts.

This year's event was the first in-person meeting since the start of the COVID lockdowns. It was great to see everyone again in person!

Attendance was relatively low. Some speculated that this may be due to expiring FBA memberships. My theory is that there may have been an issue with the invitation e-mail (I never received it myself, and I'm a current FBA member).

In any case, I wanted to post some highlights and interesting facts from the speakers today, as we did for the virtual event last year:

  • The …
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Former D. Del. Chief Judge Stark Wrote a Federal Circuit Opinion Last Week—Then Issued Eleven District Court Opinions This Week

Andrew E. Russell, June 15, 2022
Fed. Cir. Congestion

On Friday, former District of Delaware Chief Judge Stark authored what I believe is his first Federal Circuit opinion as a sitting Federal Circuit judge: In re A. Zeta S.R.L., No. 2022-1178, 2022 U.S. App. LEXIS 15992, at *1 (Fed. Cir. June 10, 2022) (affirming a PTAB trademark decision).

Note—before you e-mail to say I'm wrong!—Judge Stark has sat by designation at the Federal Circuit many times before, and has authored at least one Federal Circuit opinion as a district judge. See, e.g., Mortg. Grader, Inc. v. First Choice Loan Servs., 811 F.3d 1314 (Fed. Cir. 2016). But I think this is his first written opinion since his nomination.

Interestingly, ever since moving to the Federal Circuit, …

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With Mediation Program Inactive, Court Forces Parties in Patent Action to Private Mediation Days Before Trial

Andrew E. Russell, June 3, 2022
Mediation Congestion

Peace Talks
Markus Winkler, Unsplash

This week, after a series of sealed letters from the parties in Evertz Microsystems Ltd. v. Lawo Inc., C.A. No. 19-302-MN-JLH (D. Del.) apparently indicating settlement is imminent, Judge Noreika issued the following order:

ORAL ORDER . . . Having reviewed the parties' letter stating that they have failed to settle the case and the parties' proposal that they engage in mediation with Judge Andrea L. Rocanelli "in the event settlement cannot be reached by close of business tomorrow," IT IS HEREBY ORDERED that the parties' proposal is REJECTED. For weeks, the parties have represented to the Court that settlement is imminent. Trial is set to commence on June 6, 2022 …
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Chief Judge Connolly Warns ANDA Plaintiff to Cut Back from 16 to 4 Asserted Claims Before Trial or Face Consequences

Andrew E. Russell, May 16, 2022
ANDA Congestion

Four
David Pisnoy, Unsplash

On Friday, Chief Judge Connolly issued an order in the lead-up to an ANDA bench trial compelling the plaintiff to reduce its number of asserted claims by 75% to 4 claims, or face consequences:

ORAL ORDER: WHEREAS, the parties filed the proposed pretrial order (D.I. 225) on May 10, 2022; WHEREAS, the bench trial in this case is 24 days away, and, according to the pretrial order, Plaintiffs are still asserting 15 claims across eight patents . . . ; and WHEREAS, Plaintiffs' assertion of 15 claims across eight patents at this juncture makes clear that Plaintiffs have yet to focus adequately on the relative strength of their various infringement claims, the limited resources of …
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Chief Magistrate Judge Thynge to Retire Effective March 31, 2023

Andrew E. Russell, May 5, 2022
Congestion Magistrate Judges

Sunset in Lewes, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Andrew E. Russell, CC BY 2.0

The District of Delaware announced today that Chief Magistrate Judge Thynge is set to retire in March 31, 2023:

The United States District Court for the District of Delaware announces that Chief Magistrate Judge Mary Pat Thynge has informed the Court of her intention to retire, effective March 31, 2023, ending more than 30 years of exemplary judicial service.
Judge Thynge is the longest serving U.S. Magistrate Judge in the history of the District of Delaware. She began her tenure as a Magistrate Judge of the Court in June of 1992, after 16 years in private practice.
Judge Thynge will be sorely …
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Brush Up on Your Tennessee Local Patent Rules: Visiting Judge McCalla Brings Taste of Home Jurisdiction

Andrew E. Russell, May 3, 2022
Visiting Judges Congestion

Tennessee
Drew Beamer, Unsplash

Visiting Judge McCalla has taken about 13 patent cases so far here in Delaware, including some additional assignments late last month. A reader who has a case before him flagged an interesting point: Judge McCalla brings some of his home-state rules with him.

In his orders on hearings and scheduling conferences, for example, he directs the parties to either the Northern District of California local patent rules or the District of Tennessee local patent rules:

1. A video motion conference re: Motion to Dismiss (ECF No. 11) will be held . . .
2. The parties should refer to the Northern District of California or the Western District of Tennessee Patent Rules.

See, e.g., New York University v. Resmed, Inc., C.A. No. 21-813-JPM (D. Del. Mar. 28, 2022).

Likewise, scheduling orders in his cases may look a bit alien to regular Delaware practitioners, as he uses the District of Tennessee form. That form results in a two-page scheduling order like the attached, which focuses primarily on a few of the initial dates and guidelines, rather than ...

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