A Blog About Intellectual Property Litigation and the District of Delaware


CFC
The Honorable Colm F. Connolly

No Pendent Venue for Patent Claims

Andrew E. Russell, May 17, 2023
Venue Transfer

Visualization of pendent venue
Visualization of pendent venue Chris Linnett, Unsplash

Today Chief Judge Connolly addressed a motion to dismiss a combined trade dress, federal unfair competition, copyright infringement, and design patent infringement action.

The parties apparently agreed that the defendant in the action did not meet the TC Heartland venue test for the patent portion of the action:

Argento is a New York corporation with its principal place of business in New York. . . . It is undisputed that Argento does not own, rent, or maintain any offices, physical property, addresses, or bank accounts in Delaware and does not employ any Delaware-based employees, agents, or representatives. It is also undisputed that venue of Globefill's patent claim against Argento does not lie …
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Every Second Counts

Nathan R. Hoeschen, May 2, 2023
Scheduling

It's no secret that the Court is busy, and it's only getting busier. Time being such a limited resource, requests for special (expedited) treatment are particularly fraught.

AI-Generated, displayed with permission

An important codicil (legal words for 200 Alex (#notmyAlex)) to this rule is that, once you receive this special treatment, you really can't change your mind. This rule was brought into sparkling clarity in Taiho Pharmaceutical Co., Ltd. v. Eugia Pharma Specialities Ltd., C.A. No. 19-2309-CFC (D. Del. May 1, 2023) (Oral Order), which really speaks for itself:

Plaintiffs have filed a motion to extend by two weeks the deadline for their posttrial brief and findings of fact. During these proceedings, both sides insisted on quickly proceeding to a bench trial on the validity of the '284 patent, even though that patent does not expire until 2029. The Court accommodated the parties' request, and it has repeatedly noted the importance of the parties adhering to the Court's schedule given the Court's high caseload. Plaintiffs now seek to extend their posttrial briefing schedule by an additional two weeks because they have chosen to hire additional counsel. Plaintiffs have significantly burdened the Court's resources to date and proceeded to trial knowing that they had to abide by the Courts post trial schedule. Now therefore, Plaintiffs' motion is DENIED.

So there you go—if you're going to go fast, go fast.

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Chief Judge Connolly Cancels the April 11 Litigation Funding & Disclosure Hearings

Andrew E. Russell, April 10, 2023
Litigation Funding Standing Orders

I don't know if Air Canada actually flies here.
I don't know if Air Canada actually flies here. John McArthur, Unsplash

There were two litigation-funding related hearings set forth tomorrow in Chief Judge Connolly cases. Both were canceled today.

The first was in the Nimitz cases, C.A. Nos. 21-1362, 21-1855, and 22-413. As we discussed last week, the Court set this hearing after Nimitz failed to produce the broad formation- and funding-related discovery that the Court required from it.

Later last week, the plaintiff in that case produced the required documents. Today, the Court canceled the hearing so that it would have time to review the recent production:

ORAL ORDER: Whereas (1) on Thursday, April 6, 2023 at 4:23 p.m., Mr. Pazuniak submitted to the Court documents …
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A Mavexar Refresher

Emily DiBenedetto, April 7, 2023
Mavexar Litigation Funding

Litigation funding has become a popular topic this year, deserving of its own synopsis. For those who missed out on the recent blow-by-blow events as they happened, relive the saga below.

This is a bit lengthy. You've been warned. Pour yourself a cup of tea first and get comfortable.

Story Plot Points
Emily DiBenedetto

The Exposition: Discovery on Litigation Funding is a Mixed Bag

To set the stage, let's discuss litigation funding disputes in the District of Delaware before the most recent developments. Over the past few years, discovery disputes regarding litigation funding issues have produced mixed results. The Court sometimes grants motions to compel litigation funding materials, and other times denies them, and may (rarely) conduct an in camera review to evaluate …

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How to Insta-Waive Your Objections

Andrew E. Russell, April 5, 2023
R&R Objections to R&Rs

Look closely—down at the bottom, where the huge bolt of lightning meets the hill, are defendant's R&R objections
Look closely—down at the bottom, where the huge bolt of lightning meets the hill, are defendant's R&R objections Brandon Morgan, Unsplash

R&R objections can be a minefield for attorneys. First, the governing rules are fairly stringent, and are set forth in multiple places (including Local Rule 72.1 and a separate standing order). Second, I think it's fair to say that most judges are not eager to have to review another judge's work and potentially reverse it if they don't have to, so the rules for objections tend to be enforced.

Here are some examples of things that parties sometimes miss. The objecting party must:

  1. "[S]pecify the portions of the findings and recommendations to which objection is made and the basis for each objection, . . . supported by legal authority."
  2. Include a certification stating that "the objections do not raise new legal/factual arguments" or identifying good cause for new legal/factual arguments.
  3. Set forth its objections in a single, 10-page opening brief with no reply brief, and the page limit is generally strictly enforced.
  4. File courtesy copies of "of all filings (e.g., motions, briefs, appendices) associated with the matter to which the R&R"—this can be easy to miss, and can result in waiver.
  5. Identify the exact standard of review.

That last one, identifying the standard of review, is easier said than done. The standard of review for R&R objections can be tricky, because ...

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A Crab in a Corner

Nathan R. Hoeschen, April 4, 2023
Mavexar Litigation Funding

When I was young, I had a pet crab. Not a hermit crab, but a big honking giant land crab. He lived in a terrarium in my room and I would wave at him every day when I left for school. He would wave back. This is the best part of having a crab.

I Miss You Too Legs!
I Miss You Too Legs! Alejandro Alas, Unsplash

What you might not know about crabs, is that they're smart. They are curious creatures that will spend their whole day wandering around foraging. They will slowly stack rocks in one corner of their tank to make a ramp. They will specifically make this ramp in the corner of the tank that has the inlet for the water filter. They will (somehow) remove the clamps holding the top down and seize freedom at any cost. It's pretty much like the velociraptors in Jurassic Park.

Longtime readers will have guessed that this story is leading to a development in the Mavexar saga. And readers, I will not disappoint you. Just hours ago, Judge Connolly issued a memorandum order in the Nimitz case setting ...

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New Discovery Order in One of the Mavexar Cases

Andrew E. Russell, March 31, 2023
Mavexar Litigation Funding

Mavexar Crab

We haven't written about Mavexar for a while. But a new order today shows that the Court hasn't let up.

We discussed last year how, following a hearing in which the nature of Mavexar came out, the Court ordered the parties and attorneys in some of the Mavexar cases to submit to the Court a broad range of communications among the plaintiffs, Mavexar, and their attorneys.

Today, the Court issued a similar order in an additional case, Backertop Licensing LLC v. Canary Connect, Inc., C.A. No. 22-572-CFC (D. Del.). That case was the one at issue in the November 10 hearing, where the owner of Backertop testified that she is a paralegal who is married to …

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The Stuff of Nightmares: Plaintiff Makes Insufficient JMOL Motion During Trial, Waiving Its Post-Trial JMOL Motion Entirely

Andrew E. Russell, March 29, 2023
JMOL Waiver

Bye bye, JMOL motion
Bye bye, JMOL motion Ioana Cristiana, Unsplash

In most patent cases that make it through trial, the losing party files a post-trial motion seeking judgment as a matter of law (JMOL), asking the judge to override the jury and find for them instead. It seems fairly uncommon to see a case that went to trial and did not settle that doesn't involve a post-trial JMOL motion from one side or the other.

Under the federal rules, to file a post-trial JMOL motion under FRCP 50(b), you must first file a JMOL motion during trial under FRCP 50(a). That motion must be made before the case is is submitted to the jury, and must "specify the …

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Another D. Del. Judge Orders an In-Person Claim Construction Meet-and-Confer, and Cancels Markman (And: Some Thoughts on Claim Construction Meet-and-Confers)

Andrew E. Russell, March 8, 2023
Meet-and-Confer Claim Construction

Andrew E. Russell

Just last week, we wrote about Judge Noreika ordering an in-person meet-and-confer to occur between lead trial counsel regarding claim terms, in the courtroom in Delaware, and "continuing until excused by the Court." In ordering the in-person meet-and-confer, Judge Noreika noted that the parties had "spoke[n] for just 20 minutes about 10 disputed terms" during their meet-and-confer.

Yesterday, Chief Judge Connolly issued an order along similar lines—but outright canceling the Markman hearing. Like Judge Noreika did, the Court noted that the parties had failed to adequately meet-and-confer about a disputed term:

Plaintiffs first made their new proposal [to construe "tangent"] during the "meet and confer" discussion required by paragraph 13 of the Revised Scheduling Order. . . …
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Chief Judge Connolly Launches Nukes from Orbit, Unseals Most of Case's Docket, Sparking Emergency Motion to Stay

Andrew E. Russell, Feb. 27, 2023
Sealing Star Chamber

That smoking crater is all that's left of the patent assertion entity's effort to hide its identity.
That smoking crater is all that's left of the patent assertion entity's effort to hide its identity. AI-Generated

We've talked before about how the free ride on sealed filings is starting to end. Late last week, we got another reminder of that from Chief Judge Connolly.

In WSOU Investments, LLC v. SalesForce, Inc., C.A. No. 23-27-CFC (D. Del. Feb. 23, 2023), one of the parties filed a "motion for leave to file under seal" some of its briefing, exhibits, and—notably—its Rule 7.1 statement.

The case is a small miscellaneous action seeking to compel discovery relating to a W.D. Tex. patent action.

In response to the motion for leave to file under seal, Chief Judge Connolly elected to review all sealed filings on the docket. He went so far as to follow up with the judge in the underlying W.D. Texas action:

WSOU's motion for leave to file under seal prompted me to review all the filings the parties have maintained under seal to date.
I started with the parties' briefs (D.I. 3; D.I. 16; D.I. 20); and, because the parties justified the sealing of those briefs in part because the briefs quote from a sealed discovery hearing conducted by Judge Gilliland in the Western District of Texas, I shared copies of the briefs with Judge Gilliland to get his views on the appropriateness of maintaining the briefs under seal. I determined, and Judge Gilliland agreed, that no good cause exists ...
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