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And Then There Were Two: Update on April 2021 D. Del. Jury Trials

Andrew E. Russell, March 16, 2021
COVID-19 Trial Calendar

Peterson Wildlife Refuge in Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Peterson Wildlife Refuge in Wilmington, DE Andrew E. Russell, CC BY 2.0

The Delaware Supreme Court recently announced their expectation that they can safely return to jury trials in June, noting the recent decline in COVID-19 cases. They also announced that the 2021 bar examination for will be administered remotely.

The District of Delaware, however, is still set to restart jury trials on April 5. But there have been a few changes to D. Del.'s April jury trial calendar since our last update:

Trials Set to Proceed

  • 4/5/2021: JHL Pharmaceuticals, LLC v. PuraCap Laboratories, LLC, C.A. No. 18-553-MN (D. Del.) (contract …
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Judge Andrews: Claim Not Indefinite, Despite Possible Drafting Error

Andrew E. Russell, March 15, 2021
Indefiniteness Claim Construction

A nautilus. It's nice when significant cases have memorable names.
A nautilus. It's nice when significant cases have memorable names. Shawn Low, Unsplash

Claim construction opinions tend to be highly fact-specific, so even though they can be critically important to the parties in a case, we don't always post about them on this blog.

Judge Andrews issued an interesting claim construction opinion today, however, which addressed indefiniteness due to a potential drafting error in a claim.

The opinion involved claim language for a mechanical device:

. . . wherein the . . . assembly comprises a housing comprising the syringe and the stirring motor . . .

Defendants argued indefiniteness in light of the dual use of "comprising," because a person of skill in the art cannot determine a …

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Are Your Citations "(cleaned up)"?

Andrew E. Russell, March 12, 2021
Legal Writing

Law360 published an article yesterday by Carrie Garrison about an "exciting shift in the legal world," after Justice Thomas used the parenthetical "(cleaned up)" in a SCOTUS opinion:

Under that doctrine as it existed in 1946, a judgment is “on the merits” if the underlying decision “actually passes directly on the substance of a particular claim before the court.” Id., at 501–502 (cleaned up).

This parenthetical, as Ms. Garrison points out, was suggested in 2017 as an alternative to longer parentheticals like "(internal quotation marks omitted)" under Bluebook Rules 1.5 and 5.2.

This sounds like a great way to save some space, particularly in light of the ongoing adoption of word limits by the District of Delaware …

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Germany: Good Beer, Nice Views, Terrible Depositions

Nathan R. Hoeschen, March 11, 2021
Depositions Deposition

tobias-eggermann-HhIHBmArf0g-unsplash.jpg
Tobias Eggerman, Unsplash

Depositions have been especially hard during the pandemic. Luckily, the quick proliferation of Zoom and its competitors have made it possible to take remote depositions that roughly approximate the experience of angrily objecting across a conference table.

International depositions, however, have remained problematic. In the past, witnesses could simply be shuffled from a country with hugely restrictive deposition procedures to a more friendly jurisdiction -- be it the Netherlands, the UK, a consulate, or even beautiful Delaware.

Travel restrictions and the closing of consular offices have made this a non-starter in many cases and so there has been a bit of a resurgence in proceedings under the Hague as parties struggle to get what discovery they …

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Judge Andrews Allows Amended Complaint, but Orders Immediate Claim Narrowing

David M. Fry, March 10, 2021
Claim Narrowing

The first part of this headline is no surprise. As long as a motion to amend is filed before the deadline in the scheduling order, it's very hard to lose. In fact, Judge Andrews didn't even issue a written opinion on this one (another plug for the importance of monitoring oral orders in D. Del.):

I do not see undue delay, and Defendant basically concedes that any prejudice can be pretty easily ameliorated. The Court is not concerned about the prospect of a five-day trial with seven patents from seven families. That scenario will never come to pass.

The surprising part is what happened next. After dismissing the defendant's concerns, Judge Andrews ordered the plaintiffs to narrow their …

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A Successful Letter Asking the Court to Rule More Quickly on a Pending Motion

Andrew E. Russell, March 8, 2021
Litigation Motion to Amend

Envelope with Letter
Brando Makes Branding, Unsplash

One common question for local counsel is "can we file something asking the Court to rule on our motion"? And the answer is usually something along the lines of "no," except in certain situations.

Last week we wrote about an example of the risks of an unwarranted request to expedite consideration of a motion.

This week I saw an example of a letter near the other end of the spectrum, in which a party asked gently urged the Court to consider a pending motion and got a good result.

A Letter That Worked

Plaintiff had moved for leave to amend their complaint to add two patents to a five-patent case, where all of the …

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Chief Judge Stark Posts Public Access Information for Upcoming § 101 Day

Andrew E. Russell, March 8, 2021
§ 101 Section 101

Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Wilmington, DE Andrew Russell, CC BY 2.0

As we noted recently, Chief Judge Stark has a practice of holding "§ 101 days," in which he hears oral argument on a number of § 101 motions all at once, each from a different case. He typically issues decisions from the bench regarding each motion—which is always exciting—and follows up later with a written decision.

At first it seemed that § 101 days tended to be fatal for the patents involved, but more recent hearings have shown otherwise.

On Friday, Chief Judge Stark posted the schedule and public access information for his next § 101 day, set …

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Reargument Permitted Where Court Granted Summary Judgment on More Claims Than Intended

Andrew E. Russell, March 7, 2021
LR 7.1.5 Reconsideration

Piper Saratoga Plane
Alan Lebeda, CC BY 2.0

Last week, Judge Andrews granted a motion for reargument in a products liability diversity action, permitting further argument on summary judgment after the Court had previously ended the case by finding against plaintiff at summary judgment.

In its original opinion, nearly a year ago, the Court found that a federal statute that limits products liability for aircraft parts manufacturers blocked recovery here, and entered a judgment for defendant on all claims.

Plaintiff's motion for reargument asserted that, in addition to bringing actions against defendant as a "manufacturer," it had asserted claims based on the defendant's role as a "rebuilder and seller" of airline parts, and then detailed an argument based on the statutory language, …

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How to (Attempt to) Redact a Transcript

Nathan R. Hoeschen, March 4, 2021
KB Redactions

Given that we've devoted a good deal of coverage to redaction requests in the last few months, I thought it might be useful to present a brief primer on the procedure for actually requesting redactions to a transcript in the District of Delaware.

This procedure cannot be found in either either the local rules or the Court's CM/ECF procedures. Instead, it comes from the Court's "Policy on the Electronic Availability of Transcripts of Court Proceedings."

Under this policy the process begins when the court reporter dockets the transcript, which looks like this:

Screenshot 2021-03-04 143845.jpg
Nate Hoeschen

After that, things get a bit murky.

So I Have 21 Days to Request Redactions?

First off, that 21-day deadline ("Redaction Request Due 3/22") is actually …

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