A Blog About Intellectual Property Litigation and the District of Delaware


DED
United States District Court for the District of Delaware

Confirmed: The Avandia Redaction Standards Do Not Apply to Discovery Motions. Have We All Been Fighting for Nothing?

Andrew E. Russell, July 4, 2023
Redactions

The Delaware bar lately, arguing over redactions to discovery dispute letters
The Delaware bar lately, arguing over redactions to discovery dispute letters Hasan Almasi, Unsplash

Based on the redaction disputes I've seen in couple of cases lately, some of us here in Delaware have forgotten that the high Avandia standards for access to public materials do not apply to discovery dispute letters and their attachments, as Judge Fallon confirmed last month:

[T]he common law right of access does not extend to discovery motions and supporting materials because the "underlying discovery material itself is not a judicial record." Genentech, Inc. v. Amgen, Inc., C.A. No. 17-1407-CFC et al., 2020 WL 9432700, at *3 (D. Del. Sept. 2, 2020) (citing Leucadia, Inc. v. Applied Extrusion Techs., Inc., …
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How Many Stips to Extend the Answer Deadline Is Too Many? Nine. (Or Sixteen?)

Andrew E. Russell, July 2, 2023
Complaint Stipulation

Stop
Markus Spiske, Unsplash

We've noted before that parties routinely stipulate to extend the deadline to answer in D. Del. cases. You may have wondered—is there a limit to the number of times the parties can stipulate to extend the answer deadline?

Now we have the answer: Yes, at least for Judge Williams. Here is how he reacted when parties filed their ninth stipulation to extend the answer deadline:

ORAL ORDER: There have been nine (9) Stipulation and Proposed Orders entered in this case granting Defendant an extension of time for it to answer, move, or otherwise respond to the Complaint. See D.I. 20; D.I. 21; D.I. 22; D.I. 23; D.I. 24; D.I. 25; D.I. 26; D.I. 27; D.I. …
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Another Litigation Funding Hearing is Set for Friday, July 21, 2023

Emily DiBenedetto, June 28, 2023
Mavexar Disclosure Statement

Hercules Slaying the Hydra

Judge Connolly’s new order provides a concise summary of the Mavexar timeline and announced the date of a long-delayed evidentiary hearing in the Creekview case.

Mark your calendars for Friday, 7/21 at 9:00AM in Courtroom 4B. This hearing was originally slated for December 6, 2022, but it never happened.

Last fall, Judge Connolly ordered a series of evidentiary hearings in approximately a dozen cases to determine whether LLC plaintiffs had complied with his standing order.

According to the Court in his newest order, the first hearing in that series, involving Nimitz, Mellaconic, and Lamplight:

raised serious concerns that the parties may have made inaccurate statements in filings with the Court; that counsel, including Mr. Chong, may have …
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An ANDA Trend?

Nathan R. Hoeschen, June 27, 2023
ANDA

Drug patents are legion, and they are prone to flock together. In ancient times, a patent would describe A molecule that cured . . . the dancing plague (?) and that would be the end of that. But one bright fellow after another came up with new ways to extend the life of a drag patent, from formulation, to method of treatment, to the new hip thing -- interaction patents.

The gist of these patent claims is pretty basic

  • You've got a drug that you normally give in amount A.
  • You've got atypical patient with whose taking drug B, or has condition C (these pretty much always have something to do with the liver, don't ask me why, I was …
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Judge Williams Joins the Other D. Del. Judges in Limiting Parties to 10 Claim Terms

Andrew E. Russell, June 26, 2023
Markman Briefing 10 terms

Caution Warning
Bernd Dittrich, Unsplash

We've written a lot about the common D. Del. practice of limiting parties to 10 claim terms per case (at least for the Markman hearing).

We talked about a similar order from Judge Andrews earlier this month, and previous orders by Judges Connolly, Noreika, and Burke. Now, Judge Williams has set the same limit, in at least one action:

ORAL ORDER: Having reviewed the parties' Joint Claim Construction Brief (D.I. 96), IT IS HEREBY ORDERED that the Court will construe a maximum of ten (10) terms/term sets during the August 1, 2023 Claim Construction Hearing. The parties shall meet and confer and, no later than July 17, 2023, the parties shall file …
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A Handy Reminder that LR 16.4(b) Exists (Be Careful About Those Stips Extending the Fact Discovery Deadline)

Andrew E. Russell, June 23, 2023
Stipulation

Puzzle
Sigmund, Unsplash

As we've mentioned, Local Rule 16.4(b) must be one of the most frequently-forgotten local rules in the District of Delaware. It sets forth that a party must include certain things in a stipulation extending the fact discovery or trial dealine:

Unless otherwise ordered, a request for an extension of deadlines for completion of discovery or postponement of the trial shall be made by motion or stipulation prior to expiration of the date deadline, and shall include the following:
(a) The reasons for the request; and
(b) Either a supporting affidavit by the requesting counsel’s client or a certification that counsel has sent a copy of the request to the client.

LR 16.4.

I noted …

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Annual FBA Lunch: Court Discusses State of Court, Expansion of Judges in 2024

Andrew E. Russell, June 21, 2023
Annual Report Congestion

District Court Seal

The District of Delaware held its annual FBA luncheon today. The presentations were wonderful, as usual, and covered the typical topics. Here are some of the notable points from Chief Judge Connolly's presentation:

  • The state of the Court is excellent, and we are back to having a full bench.
  • The Court will be doing even better next year, when Judge Andrews is planning to take senior status but continue to take cases, which will effectively give the Court an additional judge.
  • The nomination process for filling Judge Andrews' seat once he takes senior status next year is proceeding "expeditiously."
  • The Court remains very busy:
    • It's the 4th busiest court by weighted case volume, although two of the higher-weighted courts …
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Objections Are Not Evidence

Nathan R. Hoeschen, June 18, 2023
RFAs Reargument

Judge Andrews issued an interesting opinion last week, in another case that breaks new ground on reconsideration. The (extremely) abridged and expurgated procedural history in MirTech, Inc. et al v. AgroFresh, Inc., C.A. No. 20-1170-RGA (D. Del. June 14, 2023) (Mem. Op.) is as follows:

  • Agrofresh moved for summary judgment on one of its counterclaims alleging breach of a settlement agreement requiring the plaintiffs to assign them several foreign patent applications
  • The plaintiffs responded by arguing that Agrofresh had actually dropped most of these claims. In support, they cited an RFA objection where Agrofresh argued that "[n]o claim or defense at issue in this lawsuit . . . relates to [the allegedly dropped applications]."
  • The Court denied …
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Important Mechanical Note for Filings with Visiting Judges Kennelly and Wolson—And Maybe for All D. Del. Filings

Andrew E. Russell, June 15, 2023
Visiting Judges CM/ECF

At a hearing today, Judge Kennelly set forth his preferences on how parties files documents in CM/ECF. He explained that he deals with all filings electronically, and large exhibits as permitted by the Delaware CM/ECF system interfere with his work flow.

He threatened to deny motions going forward (at least in that case) if parties combine exhibits in that way, specifically pointing to the following docket item:

Judge Kennelly Example

As you can see in the highlight, the party combined multiple exhibits into sub-filings, which makes it difficult and slow to download, and impossible to download individual exhibits.

Judge Kennelly prefers that parties do it this way:

Judge Kennelly Example - Correct

Visiting Judge Wolson has expressed similar concerns for similar reasons, and his procedures go a step …

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Answers to Some Common Questions About Joint Claim Construction Briefing in D. Del.

Andrew E. Russell, June 14, 2023
Joint Claim Construction Briefing Sandbagging

We're really starting to run out of good, free pictures of sand bags for these posts.
We're really starting to run out of good, free pictures of sand bags for these posts. Karen Barrett, Unsplash

At this point, all of the D. Del. judges have adopted a joint claim construction brief procedure invented by Judge Andrews, where the parties serve opening, answering, reply, and surreply briefs, and then file a single combined joint claim construction brief that presents the arguments term-by-term. This means that the parties and the Court can work from a final, combined joint brief where all of the arguments match up.

This is a great procedure and everyone seems to like it. Certain questions tend to come up about it, though.

Common Questions on the Joint Claim Construction Brief

First, parties …

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