A Blog About Intellectual Property Litigation and the District of Delaware


DED
United States District Court for the District of Delaware

Can Defendants Move to Stay Vacant Judgship Cases After All?

Andrew E. Russell, Aug. 5, 2022
Congestion Vacant Judgeship

Defendants lining up to file their motions to stay
Defendants lining up to file their motions to stay Rob Curran, Unsplash

When the Court instituted its vacant judgeship procedures following Judge Stark's elevation to the Federal Circuit, the implementing order included procedures to keep cases moving if the parties do not consent to a magistrate judge to hear the case.

For example, the order directs parties to hold a Rule 26(f) conference within seven days of notifying the Court that the parties would not consent to a magistrate judge:

The parties shall cooperate in good faith to move the case forward. To that end, within seven days of filing the notice that the parties would not consent to a Magistrate Judge, the parties shall hold a Rule 26(f) …
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Defendant Succeeds in Limiting Claims Based on the Specification

Andrew E. Russell, Aug. 3, 2022
Claim Construction

View from a fisheye lens
View from a fisheye lens Kevin Grieve, Unsplash

Defendants often want to import limitations from the specification to the claims. It only takes one missing claim element per claim to defeat an allegation of patent infringement (setting aside DOE). And the language of patent specifications is often narrower than the claims themselves, providing ample opportunities to find limitations.

Federal Circuit precedent, of course, says that the Court should avoid importing limitations from the specification into the claims—but using the specification to interpret the meaning of a claim is OK. Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005). As countless courts have recognized, that is a fine line.

As a result, defendants' early-case strategy often …

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The Double Waiver Maneuver

Nathan R. Hoeschen, Aug. 2, 2022
Waiver

daniel-jensen-UDleHDOhBZ8-unsplash
Last summer, Daniel Jensen, Unsplash

We've all spotted a waiver in the other side's papers—some issue that would have been raised earlier or more clearly by a noble opponent in a just world. Normally the issue doesn't merit more than a finger-shaking footnote, but its galling nonetheless.

Forget it Jake, it's Delaware.

An Issue Ignored

This brings us to the convoluted saga of San Rocco Therapeutics, LLC v. Bluebird Bio, Inc. The plaintiff had a license to the patents-in-suit and the parties disputed whether it was sufficient to grant standing. Because that license had an arbitration provision, the defendant moved to stay the case and compel arbitration.

In their opening brief, however, Defendants did not address the threshold …

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Judge Connolly's April 2022 Standing Orders Apply to Existing Cases, Should Not Be Taken Lightly

Andrew E. Russell, Aug. 1, 2022
Standing Orders FRCP 7.1

Hatchet on Log
Andrew E. Russell, CC BY 2.0

We posted earlier this year about Judge Connolly's new standing orders requiring plaintiffs to disclose litigation funding and Rule 7.1 disclosure requirements for certain entities such as LLCs.

In that post, we pointed out that "the language seems to apply to existing cases, but there is no explicit deadline for compliance. Personally, though, I'd probably get moving..."

Apparently, counsel for the parties in VLSI Technology LLC v. Intel Corporation, C.A. No. 18-966 (D. Del.) do not read the blog.

About two weeks ago, the Court issued oral orders in VLSI directing the parties to comply with his standing orders:

ORAL ORDER: It is HEREBY ORDERED that each party shall …
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Court Orders Plaintiff to Supplement Initial Contentions to Explain Citations

Andrew E. Russell, July 29, 2022
Source Code Final Contentions

Do It Now
Brett Jordan, Unsplash

This happened earlier this month, but I wanted to post about it since this is a recurring issue.

In Rex Computing, Inc. v. Cerebras Systems Inc., C.A. No. 21-525-MN (D. Del. July 8, 2022), defendant filed a discovery dispute to compel plaintiff to supplement its infringement contentions to explain how the cited source code meets those limitations.

Plaintiff responded, in part, by noting that these are "initial contentions while discovery is ongoing." D.I. 94 at 1.

Nonetheless, the Court ordered plaintiff to supplement its contentions to explain how the code meets the limitations:

ORAL ORDER . . . Plaintiff shall supplement its infringement contentions on or before July 18, 2022. Citations …
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Over Objection, Judge Andrews Grants Party's Motion to Correct Its Own Mistaken Statement that Formed Part of Court's Trial Opinion

Andrew E. Russell, July 27, 2022
FRCP 60 Motion to Correct

Bandaid
Diana Polekhina, Unsplash

Here's a motion you don't see every day.

In AstraZeneca AB v. Zydus Pharmaceuticals (USA) Inc., C.A. No. 18-664-RGA (D. Del.), after a bench trial before Judge Andrews, plaintiff had filed proposed post-trial findings of fact that included a definition for a person of skill in the art for the asserted patents.

Judge Andrews then issued a trial opinion finding the asserted claims infringed and not invalid—i.e., a ruling in plaintiff's favor. He adopted plaintiff's proposed definition of a person of skill in the art.

Shortly after the opinion issued, however, plaintiff realized it made a mistake in its proposed findings of fact. It had omitted part of its definition of a person …

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WDTX Begins Random Patent Case Assignments: Will More Cases Be Coming to Delaware?

Andrew E. Russell, July 26, 2022
WDTX Congestion

Looks like the sun is setting on Waco, TX
Looks like the sun is setting on Waco, TX Jed Owen, Unsplash

We're a day late on this, but it could be major news for Delaware patent litigators: the Western District of Texas is ending its practice of sending all patent cases filed in Waco to Judge Alan Albright.

Previously, all cases filed in Waco, TX were assigned to Judge Albright, a former patent litigator. He has favorable rules for resolving cases quickly and putting pressure on accused infringers, although I'm not sure that they are quite as tilted towards patentees as Law360 makes them out to be.

According to Law360, Judge Albright received 23% of all patent lawsuits in 2021. That's a lot!

We'll have to see …

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District of Delaware's 2022 Annual Report: Updates on Judge Williams' Timing, Court Caseload

Andrew E. Russell, July 25, 2022
Annual Report Congestion

Annual Report 2021
U.S. District Court

We wrote recently to report about the District of Delaware FBA's annual meeting, where the Court updated local practitioners about the state of the Court and upcoming changes. We promised an update when the Court issues its 2022 Annual Report.

Well, here is that update! The report is attached below in full. Some highlights include:

  • The report notes that the last five judges nominated to the District of Delaware took their oaths of office and entered duty within two weeks of confirmation by the Senate. The Senate confirmed Judge Williams on July 20, 2022. Doing the math, if history repeats itself, we should see Judge Williams start by Wednesday August 3, 2022. That's good news …
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When Does A Case Really Begin

Nathan R. Hoeschen, July 21, 2022
Motion to Dismiss Scheduling Order

setyaki-irham-tfdff8Poebw-unsplash
Setyaki Irham, Unsplash

I was talking to my fellow blogger Andrew the other day, when we had the following exchange:

Andrew: Greetings treasured friend and colleague! Have you noticed that Judge Andrews hasn't been requiring parties to submit scheduling orders whilst motions to dismiss are pending?

Me: Truly?

Andrew: Indubitably, I would not jest on such a matter! I have, in fact, just confirmed it by reviewing his 10 most recent orders on motions to dismiss with my own eyes.

Me: Well I cannot gainsay such thorough research. But what of the others? Do Judges Noreika and Connolly decide motions to dismiss before requiring the parties to submit a proposed schedule?

Andrew: I'm certain I don't know, but certainly …

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