Google apparently indexed its allegedly confidential information on its own search engine.Pawel Czerwinski, Unsplash
Whew, this is another one that falls in the "I'm glad I'm not involved in that" bucket (some previous entries here and here).
On Friday, Judge Andrews rejected a frivolous motion to seal, after he found some of the supposedly-sensitive information as a top result on Google:
This is about as frivolous a motion to seal as I have seen. Defendants submitted a declaration of Phil Harnish in support of their motion to transfer the case to the Northern District of California. The motion is based on the purported need to avoid disclosing “sensitive personal information about employees that, if revealed, would …
I always think it's worth paying attention to how the judges handle the presentation of evidence at trial, changes that may seem small (like bifurcation) can have a big impact on how the trial actually goes. A bifurcated trial can obviously lead to a much shorter trial, if the defendant prevails on the first phase. But even if it doesn't, bifurcation really impacts the kinds of trial themes that the plaintiff can put up, for example making it harder to paint the defendant as a bad actor from the start.
Judge Williams recognized that effect earlier this month in his order granting bifurcation of a patent trial—and suggested that restricting plaintiff from presenting those themes favors bifurcation:
The Court finds that a reduction in prejudice to BSC weighs in favor of bifurcation. [Defendant] BSC argues that [plaintiff] UT is " likely to tell a story" that UT " got an important patent and told [BSC] about their technology; [BSC] was greedy, intentionally stole the invention," and profited therefrom; and UT "got nothing." D.I. 248 at 10. That story, BSC argues, has nothing "to do with the objective question of whether the [Accused Products] meet[] all the limitations" of the Asserted Claims of the '296 patent . . . or whether the patent is invalid." Id. UT does not challenge BSC's description of UT's likely trial narrative. . . . Rather, UT argues, the need to present a piecemeal case to the jury will prejudice UT. Id.
. . . UT's description of BSC's alleged willful infringement could encourage a jury to find that BSC infringed the '296 patent for reasons unrelated to a comparison of the Accused Products to the Asserted Claims. The Court also [previously] found that "UT's evidence of post-suit willfulness is limited." . . . That finding increases the risk that UT's willfulness evidence could bias the jury's infringement and invalidity decisions. . . . When the Court weighs the risk of prejudice to BSC against the ability to mitigate that prejudice (e.g., through a jury instruction), the Court finds that the potential to reduce prejudice to BSC weighs in favor of bifurcation.
That's interesting, because (obviously) parties very often try to ...
Before we get too deep into the weeds on round 237 of the Mavexar saga, I wanted to propose a mascot. Something we can use on the site so that you can instantly spot one of these posts (you can also use the tags, of course). Having given it all the thought I am prepared to, I propose Mavexar the crab-monster.
Here he is happily greeting you and welcoming you to sit by his fire.
Happy Holidays Crab Monsters!AI-Generated, displayed with permission
Andrew may have a competing vision, but for now, look for Crab Man!
Anyway.
A Missed Deadline
Following the Federal Circuit's denial of Nimitz's Mandamus petition last week, we saw our first action from Judge Connolly on these newly un-stayed cases. I had not recalled that, under his original order, the plaintiff was scheduled to produce the documents related to its relationship with Mavexar and IP Edge by December 8. As it happens, that was the same day the Federal Circuit lifted the stay.
Neither the Federal Circuit's preliminary stay order, nor its ultimate denial of the mandamus petition adjusted that deadline. Nor, apparently, did Nimitz request the District Court amend that deadline.
So the 8th came and went with no production of documents. Indeed, up through yesterday there is no mention of the submission on the docket, which ultimately led the Court to issue a brief order requiring Nimitz to "show cause as to why it should not be sanctioned for failure to comply with the November 10 Memorandum Order." Nimitz Technologies LLC v. CNET Media, Inc. C.A. No. 21-1247-CFC, D.I. 37 (D. Del. Dec. 14, 2022). The Court did note, however, it would ...
We've posted a lot about the Mavexarhearings. Earlier this month, two of the plaintiffs in cases that had hearings scheduled, Creekview IP LLC and Waverly Licensing LLC, filed nearly-identical petitions for mandamus.
The petitions are linked below. In each, the petitioner seeks to reverse Chief Judge Connolly's order scheduling an evidentiary hearing to investigate compliance with the Court's standing orders:
Petitioner respectfully requests that the Court issue a writ of mandamus reversing the Memorandum Order and ending the judicial inquisition of Petitioner.
The petitions argue that the Court lacked Article III standing, because the cases had been dismissed, that Chief Judge Connolly abuse his discretion in issuing the standing order, and that Congress has …
The concise statement of facts is perhaps the trickiest part of SJ practice in Delaware. Given the limited space available in the briefs, it's often the only place where a party has room to lay out the story behind their motion and the case as a whole.
The danger, of course, is that you'll put in some unnecessary fact which the other party may dispute. While this might seem like a minor worry, Judge Connolly has denied many SJ motions on this basis alone.
Last week Judge Williams took the same tack in Victaulic Company v. ASC Engineered Solutions, LLC, C.A. No. 20-887-GBW (D. Del. Dec. 6, 2022) (Mem. Order), a case which he …
The District Court yesterday announced the selection of Laura D. Hatcher as the new magistrate judge to replace the irreplaceable Chief Magistrate Judge Thynge, who has announced plans to retire on March 31, 2023.
As the Court sets forth, Ms. Hatcher has worked for two firms here in Delaware, as well as the U.S. Attorney's Office:
Ms. Hatcher is currently the Chief of the Civil Division of the United States Attorney's Office for the District of Delaware. In her five years as an Assistant United States Attorney, Ms. Hatcher has handled a wide variety of civil and criminal matters. Before joining the U.S. Attorney's Office, Ms. Hatcher worked as a litigation associate with DLA Piper (2012-2017) and Richards, Layton & …
The Federal Circuit made its second foray into the Mavexar (I think) saga on Friday when it ruled on a new petition for Mandamus is In re: Swirlate IP LLC.
The plaintiff in Swirlate filed a petition for mandamus on November 30, seeking to stop a scheduled December 6 hearing.
I should note at the outset the while the Swirlate case seems to mimic the M.O. of a Mavexar entity—a Texas LLC with a single managing partner with no apparent connection to the patent—the Court has not yet held a hearing on the issue, so we can't say conclusively that the matter is related. It was, however, scheduled for a hearing in December that that sole …
Last week, Chief Magistrate Judge Thynge issued an opinion addressing a motion by accused infringers to compel the patentee to produce litigation funding discovery and opinion letters relating to the patents-in-suit.
While it involves litigation funding discovery, this case is a bit different from the recent Mavexar hearings. Here, the patentee is MHL Custom, Inc. who, it appears, is a practicing company and not an NPE. Beyond that, the case is still active (unlike some of the Mavexar cases) and the discovery is sought by the defendant, not the Court itself. In other words, this is a more typical ruling.
But the opinion is still notable. The Court granted the accused infringers' motion for three categories …
Artist's depiction of amicus attorneys standing guard outside of the District of DelawareAI-Generated, displayed with permission
There has been somuchactivity in the Mavexar cases this week that it's hard to keep up. Over the last two days, various parties have requested leave to file a total of six amicus briefs in response to the Mavexar petition for a writ of mandamus in the Nimitz case, and the respondent filed their brief as well.
All of the briefs were great, and many repeat some of the same arguments. I thought it might be worthwhile to take a spin through them and mention a few notable or unique points in each.
We've talked about how Chief Judge Connolly has held multiplehearings in the Mavexar actions, examining the owners of several patent assertion LLCs and discovering that the real party in interest seems to be Mavexar LLC. The witnesses testified that Mavexar recruits people to serve as plaintiffs, but then runs the litigation themselves—including seemingly all substantive decisions, even settlement.
After the most recent hearings, Chief Judge Connolly issued a series of orders requiring production to the Court of various communications between the LLCs, their attorneys, and Mavexar. One of the entities involved, Nimitz, immediately filed a petition for a writ of mandamus to stop the Court's …
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