Consistent with the trend in this District, Judge Andrews recently rejected a defendant's unopposed request to seal the [virtual] courtroom and exhibits for a preliminary injunction hearing, despite the defendant's assertions that its presentation might include trade secrets and other highly confidential technical and financial information, and that it would be "prevented from effectively offering its arguments" if the proceedings were not sealed.
DED
United States District Court for the District of Delaware
Motions in limine can be kind of exciting. The motions and the rulings are typically short, and they are ordinarily filed with the pretrial order just before trial. Unlike most motions, the Court usually rules on them quickly (between the PTO and the trial), sometimes live at the pretrial conference, and the impact is felt almost immediately.
Plus, orders that result from MILs can sometimes have a huge effect on the practical course of the trial by precluding important arguments and evidence, or even by interfering with your trial themes—frequently at the last minute. So it's worth keeping in mind the kinds of things that may come up at the MIL stage.
Last week, Judge Andrews …
Conservatively, 134,000,000% of 12(b)(6) motions request dismissal with prejudice. After all, no one wants to win a motion only to start a similar, but slightly harder round of briefing, when the plaintiff inevitably does file a modestly improved complaint. However, it tends to be a pretty big life to actually secure a dismissal with prejudice when the plaintiff has not already tried and fail to fix the complaint's problems.
It's occurred to me in the past that it would be nice to have a middle ground between a dismissal with and without prejudice. Something for claims that haven't already proven themselves beyond repair with serial amendments, but that are marginal enough that they are unlikely to be cured.
Judge Stark …
We've all been there: Your motion is fully briefed, you're waiting for a decision, and some new piece of information comes to light. You really want to get it in front of the judge before your motion is decided—what are your options?
In D. Del., not much. Local Rule 7.1.2(b) sets a default schedule for opening, responsive, and reply briefs, and provides that "[e]xcept for the citation of subsequent authorities, no additional papers shall be filed absent Court approval." The text is clear—if your filing isn't a notice of subsequent authority, you need the court's leave to file it.
In practice, however, notices of subsequent authority often lead to an extended back-and-forth between the parties—argumentative notices lead to responses, which lead to replies, which lead to sur-replies. Before you know it, the judge has a stack of mini-briefs to read.
In a recent R&R, Judge Burke issued a stern footnote admonishing the parties for this practice (and striking the offending filings) ...
In a short order, Judge Andrews recently laid out his reasoning for denying a motion for reconsideration of a prior summary judgment ruling, and in doing so provided helpful guidance for litigants briefing summary judgment and litigants considering filing a motion to reconsider.
In an opinion last Thursday, Judge Andrews struck a defendants' prior art arguments as to two references, after it offered them for the first time in an opening expert report served nearly two years after final infringement contentions.
The Court found that the prior art arguments were intentionally withheld, because the defendant used the same expert as other parties in another case on the same patents, and those parties had asserted invalidity based on the relevant references (through the expert) nine months or more before the expert did so here:
[T]here is no explanation why Defendant did nothing to alert Plaintiff of its new theories in the nine months or more before the expert …
Motions for reconsideration are almost impossible to win, often because the legal standard requires parties to thread a very small needle. On one hand, you can't rehash arguments you already made. On the other hand, you can't raise new arguments that you could have made earlier.
Judge Connolly illustrated this catch-22 a few days ago, when the plaintiffs on the wrong end of a Markman order tried to convince the judge to reconsider one of his claim constructions. He ignored many of the plaintiffs' arguments, which "simply regurgitate the arguments [they] made in their share of the 113-page Joint Claim Construction Brief and at the Markman hearing."
The plaintiffs raised one new argument: that Judge Connolly's construction …
Chief Judge Stark spoke at a virtual FBA event in Delaware today, and gave an update on the Court's COVID-19 plans going forward. Here are the main points:
- The Court intends to remain in Phase 2 of its reopening plan, which is the phase it has been in since September. The Court will keep trying to hold jury trials as scheduled trials come up.
- No jury trials are scheduled for the remainder of December, but he understands that there are still trials set for January. Chief Judge Stark mentioned that he did not know the exact status of those cases. (Note that at least one judge has doubted that …
As we discussed last week, people sometimes forget that parties can object to even non-dispositive rulings by a magistrate judge under FRCP 72—although I don't know whether that is what happened here.
In Boston Scientific Co. v. Micro-Tech Endoscopy USA, Inc., C.A. No. 18-1869-CFC-CJB (D. Del.), defendants moved to strike plaintiff's infringement contentions for failure to apply the Court's claim construction. The motion was referred to Magistrate Judge Burke, who denied it:
(1) With regard to Defendant's request that Plaintiffs' FICs regarding the term "breakable link... adapted to be broken[,]" be stricken, (D.I. 169 at 2), it is DENIED. The Court did not construe this term, and Defendant has not convinced the Court that Plaintiffs are …
Judge Andrews, in granting a motion to dismiss a patentee's willfulness allegations:
The allegations could charitably be described as bare-bones. There is nothing to suggest any pre-suit knowledge of the two asserted patents. Thus, Plaintiff’s position is that failure of the Defendant to concede after a suit is filed automatically converts a non-willfulness case into a willfulness case. I disagree. Thus, I will grant the motion as to willfulness.
In the same short order, he set out his view on the difference in pleading standards between willfulness and indirect infringement:
As to indirect infringement, I think the allegations make out a case for post-December 2014 indirect infringement. (I do not think Plaintiff is arguing that there was any pre-December 2014 indirect infringement, and, in any event, there are no allegations that would provide any basis for such a theory.). I do not think the requirements in regard to state of mind for indirect infringement are as great as they are for willfulness. Thus, I will deny the motion as to indirect infringement.
