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The Difference Between Equal and Equitable, Expert Edition

Jeff Castellano, July 15, 2020
Depositions Expert Discovery

When it comes time for expert depositions in multi-defendant cases, parties often disagree about how many deposition hours each side (or more specifically, each party) should get.

Judge Stark addressed this last week in H. Lundbeck A/S v. Apotex Inc., C.A. No. 18-088-LPS (D. Del.), where he permitted seven hours of expert deposition time for common issues and four additional hours for each of the nine defendants for defendant-specific issues.

Plaintiffs' depositions of certain of defendants' experts were expanded as well, to between 9 and 14 hours.

Judge Stark explained that the limits

reflect a reasonable and appropriate exercise of the Court's discretion, considering all circumstances, including the fact that this consolidated case is, in reality, …
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D. Del. Jury Trials Are Not Back After All

Andrew E. Russell, July 14, 2020
COVID-19

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

Last week we wrote that jury trials are back, based on Judge Stark's detailed memorandum order scheduling an August 3rd jury trial in Sunoco.

Yesterday, Judge Stark ended up delaying that trial after all.

Plaintiff had filed a letter setting forth some interesting reasons why the Court cannot conduct a fair jury trial:

  • Video-conferenced witness testimony risks unfair results
  • The jury pool is affected by Coronavirus' disparate impact (e.g. to minorities and the elderly)
  • Plaintiff's Texas-based attorneys would have to quarantine; Defendants Delaware-based attorneys would not
  • Plaintiff's witnesses live in Philadelphia, and cannot travel to Delaware for in-person witness prep without having to quarantine

They also noted that Coronavirus cases …

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One Way That § 101 Motions Will Get Easier Over Time

Andrew E. Russell, July 13, 2020
§ 101

iPod
insung yoon, Unsplash

A few weeks ago, I suggested that, despite Berkheimer, courts are still taking § 101 motions to dismiss seriously when the facts warrant it. The Federal Circuit just affirmed the grant of one such motion in Data Scape Ltd. v. W. Dig. Corp., No. 2019-2161, 2020 U.S. App. LEXIS 20630 (Fed. Cir. July 1, 2020).

Reading Data Scape, it is interesting that the Court was able to shortcut the Alice Step 1 analysis by simply citing a 2016 Federal Circuit decision holding that the exact idea at issue—"the concept of delivering user-selected media content to portable devices"—was abstract.

In my view, this is one way that, over time, § 101 motions are …

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The Unpublished Footnote that Governed Judge Sleet's Markman Procedure for 9 Years

Andrew E. Russell, July 10, 2020
10 Terms Influential

Grapes
Amos Bar-Zeev, Unsplash

If you're not an IP attorney in Delaware, you probably don't remember Grape v. Jingle. It was a 1-page order where Judge Sleet, in four words in a footnote, held that claim construction in all future patent disputes would be limited to 10 terms per patent:

The parties have submitted for construction [19] terms from U.S. Patent No. 7,023,969. Although disinclined to do so in the past, the court - regrettably - will impose a limit of 10 disputed terms per patent for claim construction in this and all future patent actions.

This brief order set Judge Sleet's standard practice for the next nine years until his retirement in 2018.

It quickly circulated around the …

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Jury Trials Are Back (Sort of)

Jeff Castellano, July 7, 2020
Jury Trials COVID-19

Just before the July 4 holiday, Chief Judge Stark provided some much-anticipated guidance regarding the reinstatement of jury trials in the District of Delaware after the current moratorium expires on July 31, 2020.

In a July 2, 2020 order in Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, C.A. No. 17-1390-LPS-CJB, Judge Stark told the parties that he had spent "countless hours" meeting with experts and stakeholders about restarting jury trials in his capacity as Chief Judge, and that the Court was "undertaking extensive efforts to be ready to resume jury trials in August, if it is possible to do so safely." With that background, he outlined the details of how the jury trial in the Sunoco case will proceed on August 3, 2020.

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§ 101 Denial Based on Representations in Complaint and Claimed Features

Andrew E. Russell, July 6, 2020
MTD § 101

In a brief § 101 opinion today, Judge Andrews denied a MTD based solely on Alice step 2. He relied primarily on allegations in the complaint that various claimed features of the invention were not routine or conventional:

Plaintiff . . . alleges in its amended complaint that the [asserted] claims incorporate “inventive concepts that were not well-understood, routine, or conventional at the time” of invention. . . . For example, the amended complaint alleges that some claims teach ways of displaying performance parameters so that users of both live and archived classes can compete with one another. . . . The amended complaint alleges that these functionalities were nonroutine and unconventional at the time of the invention and helped …
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Court Posts Public Dial-In for Virtual Bench Trial Starting Today

Andrew E. Russell, July 6, 2020
Virtual Trial Bench Trial

Gavel
Gavel, Bill Oxford, Unsplash

Judge Andrews is holding a virtual bench trial in a contract action today. The Court posted a dial-in for public access:

Remark: The public may access the Bench Trial scheduled to start 7/6/2020 by dialing the following phone number: 571-353-2300, then enter 792973273. The dial-in information provides listening capabilities only. (crb) (Entered: 07/06/2020)

Judge Andrews set forth his reasoning for holding a virtual trial in an order in June:

I had a teleconference with the parties on June 5. I suggested a virtual trial. I did not think it was fair for one side to have lawyers in the courtroom while the other side did not. A virtual trial (by which …
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