Twice in recent months, Judge Noreika has rejected scheduling proposals that failed to follow her form.
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In an R&R this week, Judge Fallon recommended granting a § 101 12(b)(6) motion to dismiss.
She rejected a proffered expert declaration regarding novelty of the invention, because "the court declines to consider matters outside the pleadings on a Rule 12 motion to dismiss."
She noted that "[t]he law is now well-established that patent eligibility is a threshold issue." So far she has recommended granting three § 101 motions to dismiss this year, out of four that she has addressed.
The § 101 issues addressed here were not unusual. The patent, originally held by LG and now by NPE Aegis 11 S.A., sets forth an algorithm for using random numbers to authenticate mobile …
While pre-institution stays pending IPR are usually seen as disfavored in this District, they are occasionally granted. The circumstances must be right, however.
Judge Connolly recently ordered a stay in Allergan USA, Inc. v. Prollenium US Inc., C.A. No. 20-0104-CFC pending IPRs that had been filed—but not instituted—on all asserted claims.
He noted that a related action had already been stayed pending IPR, and that the defendants had agreed "to forgo their inequitable conduct counterclaims and defenses in both actions," and found good cause to stay. As a condition of the stay, he required that defendants dismiss their inequitable conduct defenses and counterclaims, and ordered that they would be "barred" from pursuing those defenses in both actions...
Law360 reports bipartisan support for an upcoming bill that would create 65 new judgeships, including one in the District of Delaware.
It may not sound like much, but a single new DE judgeship would be a 25% increase in the number of district court judges here.
The District Court hasn't expanded since 1984, and it consistently ranks among the busiest district courts. This year it ranked third in weighted filings per judgeship (just barely behind number two, the S. D. Indiana). More than a quarter of all 2019 patent cases were filed in Delaware.
Of course, there has been talk of a new DE judgeship before and nothing has come of it. So we'll …
In ruling on a protective order dispute today, Judge Andrews wrote:
Urban legend has it that one of my predecessors said he is not bound by his own prior decisions. But I have also heard many times that lawyers believe that predictability in a judge is a really good thing. Thus, since it seems to me that the considerations here are no different than they were in the prior case, I should make the same ruling here.
IP/DE takes no official position as to which previous judge he may be referring...
His Ruling Was Also Worth Noting
The protective order dispute concerned cross-use by a plaintiff of defendants' confidential information in a multi-defendant ANDA action.
Plaintiff' proposal allowed …
Last week, in between Judge Stark's postponement of the Sunoco trial and the Court's extention of its ban on jury trials, Judge Andrews also postponed a scheduled August 18 jury trial, without setting a new trial date:
ORAL ORDER: The jury trial scheduled for August 18, 2020, is POSTPONED. Ordered by Judge Richard G. Andrews on 7/15/2020. (nms) (Entered: 07/15/2020)
ChanBond, LLC v. Atlantic Broadband Group, LLC, C.A. No. 15-842-RGA, D.I. 513 (D. Del. July 15, 2020).
He continued the trial after defendants' counsel filed an essentially unopposed request based on rising COVID-19 rates, the importance of live testimony, and the fact that plaintiff is an NPE.
Japanese patent publications are typically considered to be fairly safe prior art references, as long as you prove up authenticity and offer sufficient evidence of publication.
But it turns out that that second part—showing publication—is kind of important.
In F'real Foods LLC v. Hamilton Beach Brands, Inc., C.A. No. 16-41-CFC, Judge Connolly excluded a Japanese Patent Office Utility Model Publication on a motion in limine because the defendants failed to show that it was publicly accessible under § 102, based largely on defendants' own position in opposing IPR estoppel.
Couldn't Have Found Reference = No IPR Estoppel
The F'real defendants had previously filed an unsuccessful IPR, and plaintiff moved to exclude the reference based on IPR estoppel. …
The District Court today extended its ban on jury trials through August 31.
Chief Judge Stark had previously scheduled at least one jury trial for early August, but then rescheduled it after plaintiff raised fairness questions and pointed out the continued rise in the number of COVID-19 cases.
The Delaware state courts are likewise still in Phase Two of their reopening plan (no jury trials). Yesterday Law360 also reported that the Court of Chancery pushed this months' Tesla/SolarCity 10-day bench trial out to 2021 due to Coronavirus safety concerns.
Judge Andrews recently dropped this intriguing paragraph modifying the balancing of the Jumara transfer factors in light of COVID-19:
Currently, the COVID-19 pandemic is ongoing. Hopefully, things will get better, but the pandemic has highlighted that there can be risks associated with travel. Some people who would not have been worried about travel before the pandemic are now reluctant to travel. I believe it is appropriate to give slightly greater weight to the possibility of less risk associated with less travel, which would favor the [transfer] venue.
The opinion is otherwise a bog-standard grant of transfer where both parties were incorporated in Delaware but had no other real connection. It's quite rare to see any …
This is your daily reminder to support your privilege claims with detailed facts.
In a two-page order yesterday, Judge Andrews overruled objections to an R&R on a motion to compel issued by Magistrate Judge Fallon. Baxalta Inc. v. Bayer Healthcare, LLC, C.A. No. 17-1316-RGA (D. Del. July 15, 2020).
