Despite a recent spate of postponements of jury trials, the District Court today officially entered Phase 2 of its reopening plan (District Court Details Re-Opening Plan), permitting jury trials to go forward on a limited and heavily regulated basis.
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If these public Zoom links become more common, I'll likely stop posting about them (especially now that jury trials are set to resume). But for now, here is the Zoom link for today's trial in Xcoal, which restarted at 9 am this morning:
ORAL ORDER: The bench trial is available to the public by telephone, using dial in: 1-703-552-8058 and Conference Code: 944408, or by video, using the following link: https://trialgraphix.zoom.us/j/99196614906: Meeting ID: 991 9661 4906 Password: 166996. Audio or video reproduction of the proceeding is strictly prohibited. ORDERED by Judge Leonard P. Stark on 9/14/20. (ntl) (Entered: 09/14/2020)
As a reminder, this is the trial that was derailed immediately after opening statements by the receipt of an …
In the holding below, Judge Burke found that, under Pennypack, producing documents just over two months before trial was sufficient to provide time for "Defendants to be able to appropriately respond to Plaintiffs' expert's related position."
This is a shorter timeline than typically comes up. For example, Judge Burke has previously struck late-produced material where there were six months remaining before trial, although in that case the other Pennypack factors also played a role.
The facts here were not terrible for defendants. The documents had been produced by individual defendants in a set of related cases. According to the plaintiff, the expert reports at issue used the documents from various defendants to respond to arguments from those defendants, although …
Looks like Judge Fallon is trying out a new way of doing public hearings, with a YouTube mirror of a private Zoom teleconference at 10:00am ET on Tuesday 9/15:
ORAL ORDER- The Markman Hearing on 9/15/2020 will be a public hearing. The YouTube link for interested members of the public to observe the live Zoom session is https://www.youtube.com/watch?v=w-9WpLOvaLk&feature=youtu.be.
NexStep, Inc. v. Comcast Cable Communications, LLC, C.A. No. 19-1031-RGA-SRF (D. Del.).
The hearing is scheduled to last 3 hours and cover 6 terms.
To my knowledge, this is the first D. Del. hearing to post a public YouTube (rather than Zoom) link, at least in the IP space.
Honestly this sounds like a good way …
Judge Andrews issued two new decisions invalidating patents under § 101 on motions to dismiss. The patents at issue in B# On Demand LLC v. Spotify Technology SA, C.A. No. 19-2077-RGA, D.I. 24 (D. Del. Sept, 8, 2020) and Aegis 11 SA v. Belkin International, Inc., C.A. No. 19-1161-RGA, D.I. 24 (D. Del. Sept. 9, 2020) were the computer-centric sort that one might have expected to be invalidated at some point in the case, it was surprising to see them decided at a motion to dismiss stage—especially in light of Judge Connolly's decision earlier this week granting yet another motion to dismiss on 101 grounds.
Aren't § 101 Motions to Dismiss Supposed to Be …
On September 3, 2020, Judge Connolly invalidated five asserted patents as patent ineligible on a single Rule 12 motion. In Sensormatic Electronics, LLC v. Wyze Labs, Inc., C.A. No. 19-1543-CFC, Judge Connolly granted defendant's motion for judgment on the pleadings, invalidating five of seven asserted patents (two of the seven were no longer being asserted).
Chief Judge Stark today rescheduled the Xcoal trial for Wednesday of next week. The trial was previously derailed following receipt of an anonymous letter just after opening statements.
The opinion (embedded below) has a great summary of the facts of the trial so far, which are very unusual.
In resuming the trial quickly, he hoped to deter others from sending similar "anonymous letters" to interfere with other trials. He also noted that this is the only time the Court will have available for bench trials in the near future, because of the backlog of criminal and civil jury trials which should start back this month:
[T]his District hopes and …
Sometimes people think that they have to offer expert testimony to rebut the other side's expert on every single issue. That's not true, at least when the other side has the burden of proof.
I've represented a defendant in a jury trial representing where we offered no damages expert at all, and it worked out well (under the circumstances—I'm definitely not saying it's a good general strategy). We poked holes in the opposing expert's theories, and the other side had no way to return fire and no reply report in which the fix the issues.
Judge Andrews addressed something like that last week in an opinion on a motion in limine. Defendant had offered expert …
This week, Judge Burke issued an interesting oral order on a discovery dispute about the admissibility of "new" expert opinions in rebuttal reports.
In the order, he sets forth a simple baseline test for what a party has to show to strike purportedly "new" expert opinions in a rebuttal report. To succeed in striking a "new" theory, a party must show at least:
(a) how they clearly disclosed that theory well before final . . . contentions were due . . . ; (b) how the same theory was thereafter found in their opening expert reports . . . ; and (c) how [the opposing party] never provided any substantive response to that theory until …
The Federal Circuit's decision is below.
It found that even though the defendant did not receive an identification of asserted claims from the plaintiff until after the statutory IPR deadline, and even though the patents included a total of 830 claims, the statute did not allow the defendant to file a new IPR petition and then join it to its previous IPR proceeding as a way to add claims after the statutory filing deadline.
The Court recognized that the decision would result in wasted efforts by defendants in challenging claims unnecessarily:
We . . . recognize that our analysis here may lead defendants, in some circumstances, to expend effort and expense in challenging claims that may ultimately never be asserted …
