When people say that D. Del. is "against litigation funding," they imply that the Court has some kind of general bias against parties who use litigation funding. That's wrong. I've never seen a Delaware judge dislike or rule against a party because the party used litigation funding. And the Court as a whole is certainly not biased against plaintiffs (or defendants), funding or no funding.
With all of that said, I thought it was worth noting that Judge Burke recently ordered production of litigation funding material to the extent it related to the value of the patents.
After reviewing litigation-funding-related documents in camera, he ordered production of those that relate to the value of …
Old timers remember RainDance Techs., Inc. v. 10X Genomics, Inc., Civil Action No. 15-152-RGA, 2016 U.S. Dist. LEXIS 33875 (D. Del. Mar. 4, 2016). After the appendix of forms was banished from the Federal Rules of Civil Procedure, Judge Andrews' opinion in Raindance was among the first in the nation to hold that complaints alleging infringement had to do more than simply list the patent and the product as in the old Form 18.
For a couple years it was the citation of choice in the district for motions to dismiss, with every defendant arguing that the complaint lacked sufficient detail relating their product to the asserted patent claims.
Judge Burke issued an interesting claim construction opinion on Thursday of last week, invalidating a claim where one of two ways to infringe was scientifically impossible.
One claim limitation was set forth in the alternative:
A communications apparatus for transmitting electric or electromagnetic signals over air
Satius Holding, Inc. v. Samsung Electronics Co., Ltd., C.A. No. 18-850-CJB (D. Del. Dec. 12, 2024).
The parties agreed the it is "scientifically possible" to transmit "electromagnetic signals" over air, but the defendant argued that it was impossible to transmit "electric" signals over the air:
Defendants assert that one of those two options—“transmitting electric . . . signals over air”—amounts …
"Behold, our fulsome and complete damages theory disclosure. I'm sure this won't cause us any problems down the line."Andy Bridge, Unsplash
Parties in patent cases are often tempted to provide bare-bones responses to contention interrogatories, offering just enough to preserve their ability to expand on the arguments later during expert reports. That's easier, obviously, than providing more detailed contentions, and it also maintains flexibility as discovery develops.
Plus, parties simply may not have fully developed their theories at the time contention interrogatories are due. Expert reports are when theories are typically fully fleshed out, after discovery has closed and the universe of information is set, more or less.
But there is another consideration as well, beyond preventing a …
We lawyers move things around all the time. Some due date or another falls on a vacation, an expert gets sick, a bunch of files won't load -- a thousand different minor catastrophes can occur. In Delaware, the result is almost invariably a stipulation to move the relevant dates.
WHEREAS, on the first day the waters turned to blood;AI-Generated, displayed with permission
Typically for little interim deadlines, the Court will grant the stipulation as a matter of course. Deadlines a little closer to trial are a bit trickier. Judge Connolly, for instance, notes in his form scheduling order that "Should the parties later stipulate or otherwise request to have the [SJ and Daubert] reply brief deadline extended, the parties …
Judge Burke's decision in CosmoKey Solutions GmbH & Co. KG v. Duo Security, Inc., C.A. No. 18-1477-JLH-CJB (D. Del. Nov. 15, 2024) (Oral Order), deals with a stipulation that encompassed more than intended.
The case began life under the watchful gaze of Chief Judge Connolly. Like all patent cases assigned to him at the time, the scheduling order …
If law has one guiding principle, it is that words matter. The precise choice of verb or adjective can be the difference between friend and foe, peace and war, victory and defeat.
You've read Faust, you get it.
History's most famous lawyer?AI-Generated, displayed with permission
We saw a great example of this principle this week in I-Mab Biopharma, v. Inhibrx, Inc., C.A. No. 22-276-CJB (D. Del. Oct. 17, 2024) (Mem. Order). I-Mab was prought under the DTSA which allows damages to be calculated as either (1) damages for actual loss plus unjust enrichment or (2) a reasonable royalty. 18 U.S.C. § 1836(b)(3)(B).
The defendants—who unsurprisingly preferred a lower damages figure—served an expert damages report that noted that plaintiff's "actual damages" might be "zero." The plaintiff moved to exclude the opinion under Daubert, arguing that their damages theory was based on a reasonable royalty, and thus an opinion that their "actual damages" might be zero was neither here nor there, and was unduly prejudicial.
The defendant countered that the expert had meant that "Dr. Manning is 'not offering an opinion on actual losses, but instead references ‘actual damages’ as reflective of damages I-Mab may be awarded'—in other words, according to Defendants, the zero damages opinion is an opinion that Plaintiff’s reasonable royalty damages may be zero." Id. at 8 (quoting D.I. 364 at 23).
Judge Burke, however, found the expert's choice of words dispositive, and struck the so-called "zero damages opinion"
The Court agrees with Plaintiff that Defendants are ignoring the “actual words” that Dr. Manning used, as he did not opine in the zero damages opinion that Plaintiff’s “reasonable royalty damages” are zero (nor do Defendants point to anywhere else in Dr. Manning’s report where he opined that Plaintiff’s reasonable royalty damages should be zero). Nor do Defendants explain why an opinion that Plaintiff’s “actual damages . . . are zero” should be interpreted to actually mean that Plaintiff’s “reasonable royalty damages are zero.” Moreover, the Court agrees with Plaintiff that Dr. Manning does not seem to provide any facts or analysis in support of the zero damages opinion. Thus, Defendants have not sufficiently explained how, inter alia, Dr. Manning’s zero damages opinion is relevant in light of Plaintiff’s argument to the contrary; therefore it must be excluded.
Long answer - also yes, also obviously, but the timing is important.
AI-Generated, displayed with permission
The issue came to the fore in I-Mab Biopharma v. Inhibrx, Inc., C.A. No. 22-276-CJB (D. Del. Sept. 19, 2024) (Mem. Ord.). I-mAB is a DTSA action alleging the theft of about a dozen separate trade secrets. A few months back, the plaintiff went through a restructuring that resulted in several related entities now owning some or all of the trade secrets. The plaintiff then moved to add these entities as co-plaintiffs. Judge Burke denied the motion due to the potential for delay, given that the case was scheduled for trial int he near future.
A perennial question in disputes about late disclosures is whether the demandingFRCP 16 "good cause" standard applies, which hinges on diligence, or whether the more forgivingPennypack factors apply.
When it comes to case narrowing, there seems to be a building trend that the good cause standard applies, not the Pennypack factors. We've seen that multipletimes when it comes to a plaintiff's decision to drop claims, and on Wednesday, Judge Burke issued a detailed opinion finding that good cause is likewise required to revise a defendant's election of prior art references.
In State Farm Mutual Automobile v. Amazon.com, Inc., C.A. No. 22-1447-CJB (D. Del.), the Court ordered the defendant to cut …
I hope the Third Circuit one day revisits the Pennypack factors, which are what it directs the lower courts to apply to determine whether late disclosures are subject to sanctions such as preclusion.
The factors can be lenient on parties that are very late in disclosing critical facts. Pennypack sets up a system where, oddly, the more critical the late-disclosed fact is, the later the party can be, and the less likely it is to be excluded. Isn't that backwards?
In practice, the factors often seem to turn on whether there is incurable prejudice, and that can be hard to establish. But a rule that "you …
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