"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 …
Chief Judge Connolly's scheduling order requires parties to rank their Daubert motions, and gives the Court the discretion to automatically deny all lower-ranked motions if it denies any one motion. In other words, if a party files five Daubert motions, and the Court grants the first-ranked motion but denies the second, the Court can then deny motions three, four, and five:
If the Court decides to deny a motion filed by the party, barring exceptional reasons determined sua sponte by the Court, the Court will not review any further Daubert motions filed by the party.
It has a similar provision for summary judgment motions Thus, it's important that parties split up their motions and rank them. …
Earlier this year, the District of Delaware implemented a new policy of requiring bar cards, or an order from the Court, to bring electronics into the courthouse.
Courthouse staff have accepted out-of-state bar cards just fine. But one recurring issue is that some states simply do not issue bar cards, or only issue them optionally. Not all out-of-state attorneys have them.
As a result, in the lead up to hearings, parties often file stipulations or unopposed motions for leave for various people to bring electronics into the courthouse. The Court usually—but not always—grants these.
This post is just a reminder that, in such stipulations and motions, it's best …
We all know what ellipses (". . .") mean, right? It means that something in a quote was omitted. According to Bluebook Rule 5.3:
“Omissions of a word or words is generally indicated by the insertion of an ellipsis, three periods separated by spaces and set off by a space before the first and after the last period (“♦.♦.♦.♦”), to take the place of the word or words omitted. Note that “♦” indicates a space.”
In yesterday's lengthy Mavexar opinion, however, Chief Judge Connolly pointed out that ellipses in a transcript can mean something else entirely. They are to be used to
reflect the fact [that the witness] trailed off and was silent for a …
Here you can see Mavexar, IP Edge, and their counsel after yesterday's opinion.Mae Mu, Unsplash
Wow! Today, in the Mavexar cases, Chief Judge Connolly issued a huge, 102-page opinion referring plaintiffs' counsel to the Texas Supreme Court's Unauthorized Practice of Law Committee, the PTO, and the Department of Justice to determine whether counsel violated various rules—or federal laws:
As it appears that [three Mavexar employees] engaged in the unauthorized practice of law, I will refer them to the Texas Supreme Court's Unauthorized Practice of Law Committee.
* * *
I believe it appropriate to bring these matters to the attention of the PTO and the Department of Justice to allow them to conduct further inquiry into whether the PTO's rules or [18 U.S.C.] § 1001 were violated. The Department may also deem it appropriate to investigate whether the strategy employed by IP Edge to hide from the defendants in these cases and the Court real parties in interest, including France Brevets, violated any federal laws.
Nimitz Technologies LLC, v. CNET Media, Inc., C.A. No. 21-1247-CFC, D.I. 34 at 98, 100 (D. Del. Nov. 27, 2023).
If you're not familiar with them, Mavexar appears to be an entity that recruits people to serve as the sole members of shell LLCs that assert patents. The recruited individuals may not fully understand what is going on, and may get something like 5-10% of the proceeds of the patent infringement suits in exchange for accepting all of the risk. It looks like Mavexar sets up the entities, hires the attorneys, and does the work of selecting targets and even drafting claim charts.
The opinion goes through exactly what these entities and attorneys did—at least, as far as the Court can tell from the factual record and their production, which was apparently full of holes.
In short, the attorneys acted as if they were attorneys for Mavexar and IP edge rather than their nominal clients (the LLCs asserting the patents). They generally didn't communicate with their clients until Chief Judge Connolly started pressing them, which was months after they had been asserting and settling these cases.
Instead, the Court describes how they worked almost exclusively with Mavexar / IP Edge employees. Given that Mavexar ...
"Here is our argument. The rest of the pieces are in our concise statement of facts."T.J. Breshears, Unsplash
Years ago, I wrote a really terrible first draft of a summary judgment brief arguing invalidity of a patent for obviousness.
I wrote it immediately after expert reports, and my draft failed to actually say why the claims were obvious. Instead, the whole draft read like a sur-rebuttal to the patentee's expert: here is why their first argument doesn't work, here is why their second argument doesn't work, and so on. Never "here is why the claims are obvious."
To me, at the time, it looked great. I rebutted all of their arguments! How can we lose! To others, it …
One of the early questions in many cases (particularly NPE cases) is whether the defendant can move to dismiss the complaint under 12(b)(6) for lacking sufficient detail under Twombly/Iqbal.
The answer is yes: You can, as long as there is insufficient detail. But what is the cutoff? How bad does it have to be?
We got an example of that on Monday, when Chief Judge Connolly dismissed a complaint for lacking detail. According to the Court, all the plaintiff did was say that the defendant's product infringes the claim:
"[A] plaintiff cannot assert a plausible claim for infringement under the Iqbal/Twombly standard by reciting the claim elements and merely concluding that the accused …
Motions in limine can feel like some of the most impactful-feeling motions in the case. Unlike most motions in our busy federal courts, they are typically addressed very quickly, and almost always by the judge handling trial. They are also normally addressed immediately prior to trial. As such, even if the MIL is denied, the issues presented in the MIL may remain at the top of the judge's mind and can influence the direction of the trial (and make subsequent objections easier).
We got an example of that yesterday in Personal Audio, LLC, v. Google LLC, C.A. No. 17-1751-CFC (D. Del. Sept. 5, 2023). In that case, Chief Judge Connolly granted a post-trial JMOL …
In Candid Care Co., v. SmileDirectClub, LLC, C.A. No. 21-1180-CFC (D. Del.), SmileDirectClub sued Candid Care—its competitor—for patent infringement of a single patent. Chief Judge Connolly dismissed the case, holding that the patent was patent ineligible under § 101.
The next day, SmileDirectClub sued Candid Care on a second patent in the same family, this time in the Western District of Texas.
But the Western District of Texas transferred the case back to Delaware—and, because it is related to the previous case, it was assigned to Chief Judge Connolly again. Shortly thereafter (perhaps to avoid its second patent suffering a similar fate under § 101), SmileDirectClub granted …
When we last wrote about Mavexar, Chief Judge Connolly had held a civil contempt hearing after he ordered the sole member of Backertop, a Mavexar-related LLC, to appear in-person in Delaware and she failed to appear (she instead initiated a head-on challenge to the authority of the Court). She likewise failed to appear for her contempt hearing.
Today, the Court issued its opinion and order, holding the witness in contempt. It handily dispatched with each of the witness' arguments against the hearing.
It easily rejected their first argument—that the Court lacks jurisdiction after the entity, Backertop Licensing LLC, dismissed it's complaint. The Court reiterated the same ruling it made last time.
Next, the Court easily rejected the idea that civil contempt is "meant to benefit the complainant," citing multiple U.S. Supreme Court opinions to the contrary. It also rejected the idea that a party can re-litigate the underlying order in context of a contempt proceeding.
I found the Court's discussion of the alleged Fifth Amendment violation interesting, particularly when the Court attempts to identify exactly which Fifth Amendment right it could possibly have ...
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