A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Summary Judgment

Lack of Expert Testimony Causes Defendant to Narrowly Lose Summary Judgment of Indefiniteness

Andrew E. Russell, Jan. 10, 2022
SJ Indefiniteness

Last Thursday, Judge Burke issued an R&R on SJ in a patent action. The patent involved software for playing back audio, and the claims included means-plus-function claim elements where an action is triggered either by a single "Back" command or by two consecutive "Back" commands.

Defendant argued that the patent failed to disclose corresponding structure showing how to calculate whether the two button presses were "consecutive"—i.e., how to measure the time between clicks. Judge Burke agreed that the patent failed to disclose such a structure:

As an initial matter, the Court disagrees with Plaintiff that these limitations "do not recite any functional requirement to measure time[.]" . . . As Defendant notes, . . . in order to be able …
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Court Permits Early Summary Judgment Motion After Parties Consent to Magistrate Judge Jurisdiction

Andrew E. Russell, Dec. 26, 2021
Early SJ Summary Judgment

Last month we wrote about Chief Judge Connolly's comments on the "sad reality" of referrals of SJ motions to a magistrate judge in patent cases:

[T]he sad reality in patent cases filed in this district is that a referral of a summary judgment motion [for an R&R] pursuant to § 636(b)(l)(B) inevitably results in objections to the magistrate judge's report and recommendation, which the district court judge must review de novo. Such a referral therefore ends up doubling the amount of judicial resources needed to resolve the summary judgment motion in question. For that reason, I no longer make § 636(b)(l)(B) referrals of summary judgment motions in patent cases to a magistrate judge.

He noted at the time …

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Chief Judge Connolly Comments on the "Sad Reality" of Certain Magistrate Judge Referrals

Andrew E. Russell, Nov. 27, 2021
Summary Judgment Magistrate Judges

This week, Chief Judge Connolly denied a joint request for leave to present an early SJ motion on damages in a patent action. The parties hoped that resolution of the motion would set the stage for settlement.

Judge Connolly reiterated his rule that he will not permit early SJ motions unless they are going to be the only SJ motions, while also commenting on his case load:

As a general rule, I do not allow for an early summary judgment motion unless the resolution of the motion would be case dispositive and the party seeking to file the motion agrees that it cannot file any other summary judgment motions. In light of my case load, which approaches 600 civil cases …
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Disputing Your Own Facts

Nathan R. Hoeschen, Nov. 11, 2021
Summary Judgment

Chapter 8 of my personal favorite writing guide, Richard Wydick's Plain English for Lawyers, counsels against the use of elegant variation. For the uninitiated, elegant variation is the practice of using different words to express the same concept in order to spice up the writing. This tends to make things more confusing, especially in technical arenas. As an avowed logophile, it's one of the book's lessons that I struggle with the most.

I bring it up today, because I can't help but wonder if elegant variation played a role in the denial of a motion for summary judgment in Sprint Communications Company L.P. v. Charter Communications, Inc., C.A. No. 18-2033-RGA-MPT. Charter had moved for summary judgment of non-infringement, citing …

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Don't Forget That the Reverse Doctrine of Equivalents Exists...

Andrew E. Russell, Oct. 18, 2021
DOE Prosecution History Estoppel

Coffee Equals
Charles "Duck" Unitas, Unsplash

Most patent litigators know that the reverse doctrine of equivalents exists, and provides a way to argue non-infringement even if an accused product meets the literal terms of a claim. But it tends to be one of those issues that floats around in the ether, waiting for the right case, and it is rarely applied in practice.

Judge Connolly had an occasion last week to address the issue, resolving a motion for summary judgment of no reverse DOE, and took the opportunity to dig into some of the history of the reverse doctrine of equivalents. He first quoted the Federal Circuit's description of what the doctrine is:

the reverse doctrine of equivalents . . …
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Chief Judge Connolly Confirms Again that Willfulness Requires Pre-Suit Activity, Grants Summary Judgment

Andrew E. Russell, Sept. 20, 2021
Willfulness Summary Judgment

Nope
Daniel Herron, Unsplash

We've written about how Chief Judge Connolly has taken a stand on willfulness and indirect infringement allegations, ruling unambiguously that a lawsuit itself cannot be the basis for knowledge of infringement to support a claim of willfulness or inducement.

Today, he took it one step further, granting summary judgment of no willfulness even though plaintiff accused new products that were released after the complaint:

Boston Scientific's . . . argument is that summary judgment is precluded because "Nevro was put on notice of Boston Scientific's [#]933 and [#]193 Patents and its infringement of those patents at least as early as December 9, 2016, when Boston Scientific filed its 2016 Complaint," and "[r]ather than make any effort …
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Defendant Gets Summary Judgment Win on Eve of Trial

Jeff Castellano, Sept. 16, 2021
Summary Judgment Section 101

Most summary judgment motions in patent cases are denied. That's one reason Judge Connolly issued a standing order earlier this year requiring that parties rank their summary judgment motions and explaining that in most cases he will not consider a party's summary judgment motion if he has previously denied a summary judgment motion by that party.

Judge Connolly noted that "the complexity, voluminous record, competing expert testimony, and scorched-earth lawyering in the typical patent case make it almost inevitable that a disputed material fact will preclude summary judgment." Nonetheless, he expressed hope "that an effectively managed summary judgment practice can bring about efficiencies and cost savings."

A few days ago, in Chromadex, Inc. v. Elysium Health, Inc., C.A. No. 18-1434-CFC, Judge Connolly granted a motion for summary judgment of invalidity under 35 U.S.C. § 101, just weeks before trial...

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Judge Andrews Addresses Infringement By Standard-Compliant Products

Jeff Castellano, June 29, 2021
Summary Judgment Standards Essential

Industry standards can be helpful for a patentee tasked with proving infringement of standard-compliant products. Standards often lay out mandatory features, such that a patentee may be able to use infringement of the standard itself as a shortcut to establish infringement of a standard-compliant product (although there are limits on that type of proof, including that the patent must cover all possible implementations of the standard).

The question of whether infringement by a standard can be used to shortcut infringement proofs for a product recently came up before Judge Andrews on a summary judgment motion by the plaintiff in TQ Delta, LLC v. 2Wire, Inc., C.A. No. 13-1835-RGA.

The defendant's products in TQ Delta were accused of implementing an infringing functionality . . .

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The Perils of Including Too Few Material Facts

Nathan R. Hoeschen, May 24, 2021
Summary Judgment

Trailer presumably carrying material facts
Nathan Dumlao, Unsplash

As we've previously noted, Judges Connolly, Noreika and Hall all require parties to submit statements of material facts with any summary judgment motions. We've also noted the dangers of listing unnecessary "material facts." A new decision from Judge Connolly, however, suggests that a barebones statement of facts can be just as dangerous.

Motion for Summary Judgment Denied For Discussing Material Fact Not Included In Concise Statement

The defendants in Amgen Inc. vs. Hospira, Inc., C.A. No. 18-1064-CFC, moved for summary judgment of non-infringement, and submitted an accompanying statement facts as required by Judge Connolly. See id., D.I. 205, 207. The thrust of their argument was that the process for making their product included an "intervening …

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Judge Connolly Institutes New Summary Judgment Procedures to Deter Meritless Motions

Andrew E. Russell, April 30, 2021
SJ Litigation

In a new standing order today, Judge Connolly announced a new procedure for SJ motions in patent cases. Going forward, he will require parties in all patent cases (current and future) to rank their summary judgment motions, and if any motion is denied, he will generally deny all lower-ranked motions as well:

1. A party that files more than one summary judgment motion shall number each motion to make clear the order the party wishes the Court to consider the motions in question. The first motion the party wishes the Court to consider shall be designated #1, the second motion shall be designated #2, and so on.
2. The Court will review the party’s summary judgment motions in the …
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