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Trials? Maybe?

Nathan R. Hoeschen, Nov. 20, 2020
COVID-19

anastasiia-chepinska-OBmBHmrc3pw-unsplash.jpg
Local business closed during the coronavirus covid-19 quarantine, Anastasiia Chepinska, Unsplash

Like the rest of the nation, Delaware is presently descending into an apocalyptic vortex of pestilence and despair. As we've chronicled in numerous posts, this is having no small effect on the business of conducting trials. Thankfully, however, a few orders out this week suggest that there's still some hope that trials scheduled in the very near time might yet go forward.

The first of these was in Guardant Health, Inc. v. Foundation Medicine, Inc., C.A. No. 17-1616-LPS-CJB. This case had been set to be Judge Stark's first post-pandemic patent jury trial before being mysteriously continued earlier this month.

Today, however, the Court issued an …

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We Three Agree — Me, Myself, and I (Or: Court Strikes Expert's Opinion That Secretly Relied On His Own Anonymous Writing)

Emily S. DiBenedetto, Nov. 19, 2020
Rule 37 Sanctions

Mirrored
Mirrored Alex Iby, Unsplash

Last month, Judge Burke struck "a substantial portion" of an expert's infringement report after the expert relied on his own anonymous peer review to prove infringement, without disclosing that he had been the author.

The truth did not come out until the deposition.

The Expert Secretly Relied On His Own Prior Anonymous Writing

Plaintiffs in this action allege infringement only via the doctrine of equivalents, arguing that the differences between the accused drug and the claimed drug are insubstantial. Defendant argues that the differences are substantial, relying in part on a 2016 article showing that the accused drug performs significantly better than the claimed drug.

Plaintiffs' expert reports criticized the 2016 article based on two …

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UPDATE: First Post-Coronavirus Jury Trial in Delaware Continued Due to Coronavirus Concerns

Andrew E. Russell, Nov. 18, 2020
COVID-19 Trial Calendar

According to the docket, USA v. Davis proceeded to jury selection on Monday, but the trial was then continued:

Minute Entry for proceedings held before Judge Leonard P. Stark - Jury Selection as to Aaron Davis held on 11/16/2020 (Court Reporter B. Gaffigan.) (etg) (Entered: 11/17/2020)
ORDER: IT IS HEREBY ORDERED that the Jury Trial is CONTINUED. The government shall file a joint status report due by 11/30/2020. A Telephone Conference is set for 12/1/2020 at 01:45 PM before Judge Leonard P. Stark. Time is excluded from 11/17/2020 until 12/1/2020. Signed by Judge Leonard P. Stark on 11/17/2020. (etg) (Entered: 11/17/2020)

The order states only that the trial was continued "for the reasons stated in court November 16, 2020," …

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Disclaimer – Nice, If You Can Get It

Jeff Castellano, Nov. 17, 2020
Disclaimer Claim Construction

A Markman ruling issued by Judge Andrews this week demonstrates how hard it can be to convince the Court that a patentee has disclaimed claim scope. In the MDL In re: Sitagliptin Phosphate ('708 & '921) Patent Litigation, Judge Andrews drew a distinction between the kinds of prosecution activity that can give rise to disclaimer, and those that cannot.

Surfactants at work
Surfactants at work Soap bubbles_3, Daniele Levis Pelusi, Unsplash

In short, defendants argued that the plaintiff had disclaimed claim scope regarding the nature and purpose of the claimed "surfactant" during prosecution. The Court ultimately agreed in part, finding that "surfactant" had been limited to a "wetting agent" that increases dissolution of sitagliptin.

It is worth noting here that …

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Delaware State Courts Revert to Phase 2 of Reopening Plan

Andrew E. Russell, Nov. 16, 2020
COVID-19 Trial Calendar

COVID-19
CDC / Alissa Eckert, MS; Dan Higgins, MAMS

Just as the District of Delaware restarts its jury trials, the Delaware state courts announced today that they are reverting back to Phase 2 of their reopening plan, after just moving to Phase 3 on October 5.

Under Phase 2, there are no jury trials, but the court houses will stay open, and grand jury proceedings, bench trials, and hearings will continue.

I haven't heard of any COVID-19 outbreaks in the jury trials in Delaware state courts, but Law360 today reported that there was a COVID-19-positive juror in a trial in the Eastern District of Texas, and that seven people involved in the trial have have now tested positive. …

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District of Delaware Holds First Jury Trial Since Start of Pandemic

Andrew E. Russell, Nov. 15, 2020
Jury Trials COVID-19

Chairs
Billy, Unsplash

On Monday morning, Chief Judge Stark is scheduled to hold the second District of Delaware jury trial since all jury proceedings were put on hold for the pandemic. The case is USA v. Aaron Davis, C.A No. 19-101-LPS, a criminal fraud and money laundering action filed August 2019.

The Court issued an order Friday making clear that the jury trial will go forward as planned:

ORAL ORDER: IT IS HEREBY ORDERED that the parties shall be present in Courtroom 6B at 9:00 AM on Monday, November 16, 2020. Ordered by Judge Leonard P. Stark on 11/13/2020. (etg) (Entered: 11/13/2020)

The Court has not yet posted public access information.

UPDATE 11-18-2020: This trial was continued shortly after …

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Scheduling a District of Delaware Trial Just Keeps Getting Harder

Nathan R. Hoeschen, Nov. 12, 2020
Scheduling COVID-19

As we've covered pretty exhaustively, its getting harder and harder to schedule a trial next year in the District of Delaware. In fact, given the huge number of delays and cancellations of trials that were previously scheduled for this year, most of 2021 is already double or triple-booked with trials.

So it's no surprise that parties that don't have firm dates already on the calendar for next year are eager to lock something—anything—down. That's what happened in Arendi S.A.R.L. v. LG Elecs., Inc., et. al., C.A. No. 12-1595 (LPS), last week. In that case—which is actually seven related cases—the scheduling order (as modified by recent COVID-related stipulation) set a deadline for dispositive motions that had briefing set to conclude next …

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Rule 31 Depositions by Written Questions In Light of COVID-19 Travel Restrictions

Andrew E. Russell, Nov. 11, 2020
Depositions FRCP 31

COVID-19
COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

Here's something you don't see every day.

After a discovery dispute about bringing a parties' European witnesses to the US for deposition during the pandemic, Judge Noreika ordered that depositions of a defendants' witnesses may initially take place by written questions under FRCP 31:

ORAL ORDER . . . IT IS HEREBY ORDERED that . . . Plaintiff may request a deposition of the witnesses pursuant to Federal Rule of Civil Procedure 31. Any such deposition shall be subject to Local Rule 30.6, with the "commencement" of the written deposition being when Defendants' counsel receives the written questions and the "conclusion" of the deposition being when Defendants' counsel serves the response …
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Fed. Cir. Grants Mandamus Petition, Orders Transfer Out of W.D. Tex.

Andrew E. Russell, Nov. 10, 2020
Jumara Transfer

Yesterday the Federal Circuit granted a mandamus petition to transfer a case against Apple out of the Western District of Texas to the Northern District of California, ordering that Judge Alan D. Albright had clearly erred in declining to transfer the case.

Patently O has a full summary of the opinion, including the strong dissent.

A couple of additional thoughts:

  • It is interesting that the Federal Circuit did not have a problem with Apple filing its mandamus petition before the District Court had even ruled on the motion to transfer. Footnote 1 does limit this practice to the "particular circumstances of the case," but obviously it worked out well for Apple here.
  • The Federal Circuit's opinion applies Fifth Circuit …
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Defendant's Attempt to Raise Inventorship Defense at Trial Blocked

Jeff Castellano, Nov. 10, 2020
Preclusion Litigation

Earlier today, Judge Connolly issued a ruling precluding a defendant from pursuing its inventorship theory under 35 U.S.C. § 102(f). The ruling is notable because the request for preclusion came at trial after the defense was included in the parties' pretrial order. Nonetheless, Judge Connolly found that the circumstances justified exclusion.

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Ani Kolleshi, Unsplash

Although defendant Sandoz's final contentions had raised an inventorship defense, it was focused on misjoinder as opposed to nonjoinder, Judge Connolly explained.

And although Sandoz included a nonjoinder defense in its portion of the pretrial order, Judge Connolly noted that "given the number of contested facts and issue of law Sandoz identified in the 8,629-page PTO, I would not fault Plaintiffs if they failed …

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