Over the last two weeks, Chief Judge Connolly issued orders in about 15 different groups of cases offering the choice between consenting to magistrate judges Burke (in some cases) or Fallon (in other cases), or being referred to a visiting judge:
ORAL ORDER: It is HEREBY ORDERED that on or before June 13, 2023, the parties shall either (1) submit to the Clerk of Court an executed Form AO 85 Notice, Consent, and Reference of a Civil Action to a Magistrate Judge, indicating their consent to have a United States Magistrate Judge conduct all proceedings in this case including trial, the entry of final judgment, and post-trial proceedings; or (2) file a joint letter indicating that …
In almost every case I have as a defendant, there's a moment around claim construction when I'm just sure I've got the plaintiff dead to rights. Under one construction, there's no infringement—under the other, the patent's invalid. I've just gotta turn the crank on the vise until those conniving jerks pop.
I had a different picture here before but it was . . . pretty darkAI-Generated, displayed with permission
More often than not, however, this insoluble dilemma dissolves and I'm left cranking air.
It was thus with noticeable relish that I read Judge Bataillon's post-trial opinion in CR Bard Inc. v. AngioDynamics Inc. C.A. No. 1-15-218-JFB-SRF (D. Del. June 1, 2023)—where this spring was finally sprung.
The trap was—weirdly—in the term "suitable." The patents claimed a method for identifying a medical injection port as one of those "suitable" for high pressure applications such as CT scans (as well as apparatuses for doing the same). Apparently, the wrong sort of ports will explode if you use them for CT scans, so it's important for the doctor to know which kind you have.
The issue that came to the fore at trial was whether a "suitable" port was one that was ...
Judge Andrews issued an interesting order on Friday. Based on the docket, it looks like the parties had fully completed the Markman process (disclosures, meet-and-confer, joint claim chart, and joint brief), and had briefed a total of 16 terms. Judge Andrews then canceled the Markman and "dismissed" the briefing:
ORAL ORDER: The parties have submitted a joint claim construction with the request that I construe at least 16 terms including, for example, comprising and patient. I think that if I postpone the Markman hearing, some of these disputes may fall away. Therefore, the Markman hearing scheduled for June 23 is cancelled. The Markman briefing is dismissed. The …
Last week, the District of Delaware began assigning patent cases to visiting judge J. Nicholas Ranjan of W.D. Pa. As far as I can tell, these are the first D. Del. cases to be assigned to Judge Ranjan.
Following the assignments, Judge Ranjan issued the following order in each case:
ORDER, regarding practices and procedures of Judge Ranjan. I was recently reassigned several patent cases in the District of Delaware. In order to provide some degree of procedural consistency, I intend to follow all local rules and standing orders of the District of Delaware, and I intend to utilize Judge Andrews forms and orders, until further notice. So counsel should comply with all …
It takes a lot to get a legitimate audible laugh out of us at IPDE, but Judge Noreika managed it with one of her orders this week:
On 5/25/2023, the Court issued an Oral Order stating in part that "[t]he Court will not...accept further ex parte emails." Nevertheless, on 5/30/2023, the Court received an ex parte email stating: "We are not attempting to have an ex parte communication entered into the files. By the attached letter, we are attempting to comply with this Court's orders. Will you please provide the Honorable Judge Noreika the attached letter." The Court does not accept ex parte communications. The Court notes, however, that the referenced "attached letter" states that the patents-in-suit are "no longer …
Chief Judge Connolly issued a memorandum order in the Backertop case today. We talked previously about how the plaintiff in Backertop is an LLC whose sole member is a paralegal who is married to an attorney who works at Mavexar, who gets just 5% of the proceeds of litigating the patents owned by the LLC (the rest goes to Mavexar).
Following a hearing last year, the Court ordered production of various documents, and ordered the owner of the LLC to appear again for a hearing on June 8. She asked to attend remotely due to other obligations.
Today, Chief Judge Connolly denied her request, but rescheduled her appearance for July (the June 8 hearing will still …
We talked early last year about how Judge Noreika praised Chief Judge Connolly SJ ranking procedures, and applied them in a case where the parties had filed 11 SJ motions.
As a reminder, under Chief Judge Connolly's procedures, the parties rank their SJ and Daubert motions. The Court addresses them in order, and if it denies one, it then denies the remainder.
Needless to say, it can lead to some significant strategizing prior to filing, where parties try to balance the importance of each motion with its likelihood of success.
This week, Judge Noreika did it again, and I thought it was a good time to remind everyone that this can happen. In VB Assets, LLC v. Amazon.com, Inc. …
Motions to strike are tough in Delaware. Although the reign of Pennypack seems to be slowly entering its dotage, the door remains open for the late-disclosed.
With exclusion so rare, its a bit odd we don't see more of Rule 37's lesser sanction -- fees.
But visiting Judge McCalla gave us one on Monday in Invacare Corp. v. Sunrise Medical (US) LLC, C.A. No. 21-823-JPM (D. Del. May 22, 2023) (Oral Order). The facts there were pretty stark.
The defendant had an inequitable conduct claim based on the patentee's failure to inform the PTO that identical claims had previously been rejected. Plaintiff's prosecution counsel testified that the failure was due to an error in an internal spreadsheet they kept of related applications that omitted the relevant application. Plaintiff had previously withheld the spreadsheet as privileged but eventually waived privilege and produced it.
Unfortunately, it came out during expert discovery that the spreadsheet actually contained the relevant application. This was probably a bad day for a lawyer somewhere. Plaintiff then went back to see if there were other versions of the spreadsheet that did omit the application -- they eventually found and produced some, but by then it was 4 months after the close of fact discovery.
Defendant moved to exclude these new references. Judge McCalla denied the motion but ordered plaintiff to pay what will surely be a hefty sum to cover the ...
I've got a real oddball fact pattern for you today. I'm not sure there's a takeaway for your everyday litigation life, but please remember to hug your experts -- you'll be glad you did.
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The last time the plaintiff in Personal Audio LLC v. Google LLC, C.A. No. 17-1751-CFC (D. Del. May 22, 2023) spoke to their expert was in August 2021 when he submitted a declaration opposing a Daubert motion.
Sadly, he passed the following January.
Unfortunately, no one told the plaintiff.
Amazingly, two months after that the expert consulting firm plaintiff had been working with reached out to see if the expert was still needed. I can only imagine they were hoping …
On Wednesday, Judge Andrews issued an order in Salix Pharmaceuticals, Ltd. v. Norwich Pharmaceuticals, Inc., C.A. No. 20-430-RGA (D. Del. May 17, 2023) rejecting an attempt to evade judgment in an ANDA action based on the filing of an amended ANDA.
The defendant in the case had won on one method of treatment, and lost on the other. It filed an amended ANDA seeking to remove the infringing treatment from the label:
Defendant filed an ANDA seeking to make and market a drug for two different methods of treatment-the IBS-D indication and the HE indication. I had a bench trial. After trial, I ruled in Defendant's favor on the IBS-D indication (as …
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