If you've spent way too much time on the internet lately, you'll likely have seen way too many memes about how kids today don't understand the order of operations. The typical format is some bookface (tm) post along the lines of:
999,999 out of 1,000,000 people get this wrong:
3 + 4(3+2) - 2 X 3 = ?
17
The darkness at the end of all time
97
(audible belch)
And then there's someone confidently giving the wrong answer.
Of course, the correct answer can only be arrived at by following the prescribed order of operations. This same concept comes up quite often in civil procedure, but the application is often less straightforward than good old …
"Whatcha doin'?" "I'm writing out my 543rd trade secret. One hundred more to go."AI-Generated, displayed with permission
In my experience it's fairly uncommon to see a party get multiple days of deposition time with a fact witness deponent, outside of a few recurring circumstances (e.g. translated depositions). That's why I thought it was worth pointing out the ruling unsealed today in Gemedy, Inc. v. The Carlyle Group, Inc., C.A. No. 23-157-CFC-SRF (D. Del. June 7, 2024).
In Gemedy, plaintiff alleged misappropriation of 643 trade secrets, all authored (or co-authored, for 11 of them) by one person over an eight-year period. The defendant sought to depose that one person for four days, given their scope of …
Yesterday, in Datacore Software Corp. v. Scale Computing, Inc., C.A. No. 22-535-GBW (D. Del. June 21, 2024), the Court issued fascinating opinion rejecting an indefiniteness argument for apparatus and method claims that included an "intent" requirement.
The claims at issue relate to allocating drive space on computer disks. The patentee explained in the specification that the system involves defining multiple virtual disks that can, collectively, be larger than the actual physical space available (e.g., in a sense, they overlap):
One advantage of the present invention is that the physical storage devices that are placed into a storage pool do not need to add up to the size of …
Given how easy it is to seal information on the docket in Delaware, parties often don't think too much about the fact that they are going to discuss confidential information at a hearing, and may not want to interrupt the process to seek to seal the courtroom. And parties rarely seek to seal teleconferences, if only the parties are on.
But recent orders have made clear that if you may need to later seek to seal the transcript of a teleconference, hearing, or trial, the only safe thing to do is to request to seal the proceeding. This is true even if you are certain that only the parties are on the line.
Over 10 years ago, the District of Delaware adopted its "Default Standard" for discovery, which sets forth several basic rules for discovery, particularly in patent actions.
One of the rules is the requirement to produce "core technical documents" early in the case:
Within 30 days after receipt of the [list of accused products and asserted patents], each defendant shall produce to the plaintiff the core technical documents related to the accused product(s), including but not limited to operation manuals, product literature, schematics, and specifications.
Pretty quickly after its adoption, the Court held that this includes non-public documents, after parties started trying to skirt the rule by dumping user manuals on the patentee.
Bringing a discovery dispute is a bit of a 3-body problem. At any given time, you've probably got a half dozen complaints with what the other side is doing. When one boils over into a dispute you have to grapple with whether you should just bring all of them—and risk looking unreasonable—or just address the most pressing and risk having to raise serial disputes, which might look even worse. The push and pull can quickly become insoluble.
Luckily, we got an Order from Judge Burke this week that should make this calculus slightly easier going forward.
The defendants in Bardy Diagnostics, Inc. v. Vital Connect, Inc., C.A. No. 22-351-CFC-CJB, D.I. 97 (D. Del. June 11, 2024) (Oral Order) brought the first discovery dispute of the case (by either party) via judge Burkes usual procedure of filing a letter listing the disputes.
The disputes read as the usual humdrum list of custodians not searched and rogs insufficiently answered. The only thing out of the ordinary, is that there were 5 of them included in the letter.
Judge Burke responded to the request for a teleconference the next day with ...
We got an interesting Daubert opinion from judge Burke yesterday. It's actually not in a patent case, but the issue was neat enough that I'm willing to make an exception to our usual rule.
(Eds. note—I really hate that Daubert is always italicized because its a case name, but the pronunciation is not at all French. I see italics and I get all excited to roll some R's or whatever and then I just sound like the midwesterner I am).
The issue: can an expert report be too polite?
They've always struck me as a very polite-looking creature, despite the whole cannibalism thingDavid Clode, Unsplash
The case involved various disclosures in a business transaction, and the expert in question was an accounting professor opining on whether certain financial disclosures were deficient. Reading through the statements, they do strike me as unusual for an expert report:
“I am uneasy about the fact that there were no disclosures [in the financial statements] about Schratter’s ability to continue to operate as a going concern.”
“I was surprised that the financial statements did not make any mention of a possible impairment of goodwill. . . . Given the financial condition of Schratter in 2014 and its recent financial performance, I would have expected to see some disclosures about an impairment test for goodwill and why no impairment was recorded.”
ECB USA, Inc. v. Savencia, S.A., C.A. No. 19-731-GBW-CJB (D. Del. June 10, 2024) (Mem. Order) (quoting expert report of Ricky Lee Antle).
I mean, you see it right? This sort of language—both personal and measured—is the sort you might expect to hear from your own deeply disappointed accountant, rather than in an expert report. Still, it's tough to say what exactly would be objectionable about it.
The tack defendants chose was to challenge these statements as ...
"Did . . . did he just end our case with deposition testimony? Ah, I'm sure it will be fine."AI-Generated, displayed with permission
The Court unsealed a memorandum order yesterday in Sensormatic Electronics, LLC v. Genetec (USA) Inc., C.A. No. 20-760-GBW (D. Del. Mar. 27, 2024), where Judge Williams found a patent case exceptional, and awarded fees against the patentee plaintiff.
The Court previously held that one of the asserted patents, the '652 patent, was invalid because it was offered for sale after it was reduced to practice and more than a year before when the inventor applied for a patent.
In this order, the core cause of the exceptional case finding was that, after a …
Here's a scenario that can happen in a patent case: The patentee serves an opening expert report alleging infringement. Your expert responds, detailing every reason why the design documents show non-infringment. The patentee then serves a reply expert report, citing new documents that it says show infringement.
What do you do now? There are at least four answers: (1) move for leave to serve a sur-reply report to address the new docs; (2) just serve a sur-reply report, without leave, and fight the inevitable motion to strike; (3) skip the report but have the expert be prepared to discuss the new papers at deposition, and hope plaintiff asks; or (4) just plan to address the new …
Still thinking about my plums! It's the season baby!Svitlana, Unsplash
Its easy to forget about prejudgment interest. You only need to address after the trial is over when you're putting together the final judgment, but the seeds of victory or defeat are oft planted in the fertile loam of pretrial submissions and expert reports.
Case in point, Judge Williams' decision this week in Board of Regents, the Univ. of Texas Sys. v. Boston Sci. Corp., C.A. No. 18-392-GBW (D. Del. June 5, 2024) (Mem. Op.). At trial, the plaintiff prevailed on all counts and the Jury awarded a verdict of $42,000,000.
Here's the form:
Court
You'll notice the verdict says nothing about whether the royalty …
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