"Could we do it in a few days? Eh, let's stip it out by six weeks."AI-Generated
We've talked before about how, in the District of Delaware, the Court usually grants stipulated extensions of upcoming deadlines, as long as those deadlines don't impact the Court.
Today I noticed an order from last week that goes against that trend. In Mallinckrodt Pharmaceuticals Ireland Ltd. v. Airgas Therapeutics LLC, C.A. No. 22-1648-RGA-LDH (D. Del.), before Judge Andrews, the parties filed a straightforward stipulation extending the deadline to file redacted versions of a number of pleadings:
IT IS HEREBY STIPULATED AND AGREED, by and between the parties hereto, and subject to the approval of the Court that the time for …
It's my dear hope that this post will be one of the few that appeals to muggles. Please, if you see one, thrust your phone at them proudly and demand they read it. Watch their terrified eyes scan over every word. Do not allow them to flee. Repeat. Repeat. Repeat!
We call this SEO in the bizAI-Generated, displayed with permission
Judge Bibas gave us this gift of a general interest (comparatively) post with his decision yesterday in Thomson Reuters Enterprise Centre GmbH v. ROSS Intelligence Inc., C.A. No. 20-613-SB (D. Del. Sept. 25, 2023) (Mem. Op.).
The case deals with the exceptionally buzzy issue of AI data scrubbing. Thompson Reuters runs the hugely popular Westlaw legal research platform. As part of that service they provide they provide vaguely useful "headnotes" describing the holdings of the cases.
(Eds. Note - Westlaw, if you are reading this, we can be bought. Every 10% you discount our service will result in an improvement of the adjective above. We can go all the way from "vaguely", to "quite", to "masterfully." It's about time this blog started paying the bills).
Ross is attempting to start some sort of AI-driven competitor where you just type in a question and receive a plain language legal answer. No Booleans, no problem.
I was not expecting book recommendations—fiction and non-fiction—from the conference!saracohenn, Unsplash
Following up on our post last week, here is part 2 of our notes about the District of Delaware Bench and Bar. As we mentioned, these are all without attribution under the Chatham House Rule, and we won't be discussing any specific panels:
Magistrate Judge Tips
For discovery disputes, judges want to see what the moving party wants, why, and what law or regulation justifies the request.
The party opposing a discovery dispute should focus on the real reason for opposing the request
The court appreciates honesty and the parties having some level of restraint in arguing discovery disputes
Timing of discovery dispute motions is important. …
The 2023 District of Delaware Bench and Bar wrapped up today. It was really great to see everyone in person again. It's hard to believe it, but the last D. Del. Bench and Bar conference was back in May 2018 - over five years ago!
Everyone seems to agree the conference was a huge success. Thank you to the organizers and the Court, who put in a ton of work to make it happen!
Notes
The conference is conducted under the Chatham House Rule—which, honestly, we had forgotten. That means we "are free to use the information received, but neither the identity nor the affiliation …
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 …
"Do we want to bring this discovery dispute, or do we want to cross their corporate rep at trial? Choices, choices..."Vladislav Babienko, Unsplash
We've written before about how the Court sometimes sets up escalating obstacles for parties who are insensitive to the Court's time and bring too many discovery disputes. In that case, the Court gave the parties "homework" (writing letters to the Court) after their seventh discovery dispute.
In Apple Inc. v. Masimo Corporation, C.A. No. 22-1377-MN-JLH (D. Del.), the Court referred all pre-trial matters up until dispositive motions to Magistrate Judge Hall.
Judge Hall took action after the parties brought what looks like seven discovery disputes. The docket shows the Court's escalating response to the parties disputes:
June 1 - First teleconference
June 16 - Second teleconference
July 7 - First in-person hearing
July 14 - Second in-person hearing
August 3 - Third in-person hearing
September 1 - Fourth in-person hearing; Court warns that future disputes will be charged to trial time
September 14 - Fifth in-person hearing; Court charges the parties' trial time
Guessing from the docket, it looks like the parties brought a number of rapid-fire discovery disputes starting on June 1. For the third dispute in about a month, the Court increased the friction on the parties by forcing them to come to Delaware to argue the disputes.
That doesn't seem to have slowed them down at all. After three in-person disputes ...
After reading the decision in Nate's post yesterday, it occurred to me that we haven't addressed a common question in cases in the District of Delaware: When will the Court decide the parties' summary judgment motions?
This is a question that comes up a lot. I think that sometimes, in clients' minds, summary judgment motions are something that is resolved quickly. The parties brief their motions, the Court immediately turns to them, and then an opinion should come out in a week or two. Right?
No. That's not true in any U.S. district court I've practiced in, and the District of Delaware is no different. The Court is extremely hardworking but also overwhelmingly busy.
Many years ago, before Andrew made me put a picture in EVERY TURTLE-CURSED POST, I wrote a post about the very easiest Daubert motion to win. As a brief refresher, it turned out to be a motion to exclude a damages experts reliance on a jury verdict point as the starting point for a hypothetical negotiation. Both Judge Andrews and Judge Burke were particularly firm on the issue, coming just short of setting a bright-line rule:
A jury verdict does not represent evidence from which a hypothetical negotiation can be reliably determined. A jury verdict represents the considered judgment of twelve (or maybe fewer) random non-experts as to what a hypothetical negotiation would have resulted in for the patent(s) …
Judge Bryson recently unsealed his opinion in Janssen Pharmaceuticals Inc. v. Tolmar, Inc., C.A. No. 21-1784-WCB (D. Del. Sept. 8, 2023), in which he grants summary judgment of no anticipation by a reference under (Pre-AIA) § 102(a).
As a reminder, pre-AIA § 102(a) covers prior art that was available "before the invention" of the patent.
Here, the plaintiff argued that it had reduced the invention to practice before the date of the prior art. The defendant responded that, sure, they reduced an embodiment to practice before the prior art, but they didn't conceive of the invention's full scope:
Tolmar does not appear to dispute that the June 2007 clinical trials practiced …
Defendants are often looking for ways to resolve cases early—§ 101 motions to dismiss, motions for judgment on the pleadings, early summary judgment motions, and so on. Sometimes these can succeed, but it can vary a lot depending on the judge and the circumstances.
Here is one I haven't seen before: In Ravgen, Inc. v. Biora Therapeutics, Inc., C.A. No. 20-1734-RGA-JLH (D. Del.), the defendant moved for the Court to schedule a one-day bench trial on inequitable conduct just after the close of expert discovery, and before the summary judgment deadline—around 7-10 months before trial.
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
