A Blog About Intellectual Property Litigation and the District of Delaware


DED
United States District Court for the District of Delaware

It's interesting that the Court is now regularly offering public access information for remote hearings. I can't recall it doing that before the coronavirus.

The only pre-coronavirus remote hearings I can think of were for scheduling and discovery dispute conferences, where public access is not usually a concern. Scheduling conferences often took place privately in chambers even when they were in-person, and discovery dispute conferences often involve confidential information anyway. It looks like they judges are still handling these how they always have.

These days, however, the Court regularly holds all kinds of other, more substantive hearings remotely, and most of the judges have been taking steps to allow the public to attend. Here is what the judges have been …

Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Wilmington, DE Andrew Russell, CC BY 2.0

In an opinion today, Judge Andrews laid out his updated thoughts on transfer motions, particularly in light of COVID-19 travel restrictions and the related difficulties.

Here are some interesting points re: his views:

  • In granting transfer, he focused on the fact that the Plaintiff's principal place of business was not Delaware
  • He held that convenience of counsel is irrelevant, because parties can choose their counsel.
  • As far as court congestion, he noted that "[o]ne other Delaware judge and I each individually had more old cases than the entire Western District [of Washington]," and that the Judicial Conference has recommended …

Plaintiff Estopped as Nearby District Moves to Overtake
Plaintiff Estopped as Nearby District Moves to Overtake Abed Ismail, Unsplash

Judge Noreika had a rare holding estopping a plaintiff from asserting the lone patent-in-suit patent due to collateral estoppel after trial.

The Court held a five-day bench trial in Biogen Int'l GmbH v. Amneal Pharms. LLC, C.A. No 17-823-MN in December 2019, dealing with a host on invalidity issues, including obviousness, enablement, and written description. The parties completed post-trial briefing in March 2020, and and a final opinion was thus expected in the not-too-distant future.

Unfortunately for Biogen, they also sued a different defendant, Mylan, in the Northern District of West Virginia on the same patent. That case went to trial in February 2020, on the sole …

Judge Andrews yesterday issued his opinion denying all post-trial motions in TQ Delta, LLC v. 2Wire, Inc., C.A. No. 13-1835-RGA (D. Del.). The jury had returned a verdict of infringement and no invalidity after a trial in January 2020.

One part of the opinion stands out—Judge Andrews discusses his decision to preclude the defendant from discussing the full prosecution history of the patent before the jury as prejudicial under FRE 403:

I ruled that 2Wire could elicit testimony about what prior art was in front of the patent examiner, but that testimony about a “lengthy history of cancelling claims, adding claims, rejecting claims, [and] rejecting new claims” was inadmissible under Federal Rule of Evidence 403 because …

If these public Zoom links become more common, I'll likely stop posting about them (especially now that jury trials are set to resume). But for now, here is the Zoom link for today's trial in Xcoal, which restarted at 9 am this morning:

ORAL ORDER: The bench trial is available to the public by telephone, using dial in: 1-703-552-8058 and Conference Code: 944408, or by video, using the following link: https://trialgraphix.zoom.us/j/99196614906: Meeting ID: 991 9661 4906 Password: 166996. Audio or video reproduction of the proceeding is strictly prohibited. ORDERED by Judge Leonard P. Stark on 9/14/20. (ntl) (Entered: 09/14/2020)

As a reminder, this is the trial that was derailed immediately after opening statements by the receipt of an …

In the holding below, Judge Burke found that, under Pennypack, producing documents just over two months before trial was sufficient to provide time for "Defendants to be able to appropriately respond to Plaintiffs' expert's related position."

This is a shorter timeline than typically comes up. For example, Judge Burke has previously struck late-produced material where there were six months remaining before trial, although in that case the other Pennypack factors also played a role.

The facts here were not terrible for defendants. The documents had been produced by individual defendants in a set of related cases. According to the plaintiff, the expert reports at issue used the documents from various defendants to respond to arguments from those defendants, although …

Looks like Judge Fallon is trying out a new way of doing public hearings, with a YouTube mirror of a private Zoom teleconference at 10:00am ET on Tuesday 9/15:

ORAL ORDER- The Markman Hearing on 9/15/2020 will be a public hearing. The YouTube link for interested members of the public to observe the live Zoom session is https://www.youtube.com/watch?v=w-9WpLOvaLk&feature=youtu.be.

NexStep, Inc. v. Comcast Cable Communications, LLC, C.A. No. 19-1031-RGA-SRF (D. Del.).

The hearing is scheduled to last 3 hours and cover 6 terms.

To my knowledge, this is the first D. Del. hearing to post a public YouTube (rather than Zoom) link, at least in the IP space.

Honestly this sounds like a good way …

Judge Andrews issued two new decisions invalidating patents under § 101 on motions to dismiss. The patents at issue in B# On Demand LLC v. Spotify Technology SA, C.A. No. 19-2077-RGA, D.I. 24 (D. Del. Sept, 8, 2020) and Aegis 11 SA v. Belkin International, Inc., C.A. No. 19-1161-RGA, D.I. 24 (D. Del. Sept. 9, 2020) were the computer-centric sort that one might have expected to be invalidated at some point in the case, it was surprising to see them decided at a motion to dismiss stage—especially in light of Judge Connolly's decision earlier this week granting yet another motion to dismiss on 101 grounds.

Aren't § 101 Motions to Dismiss Supposed to Be …

On September 3, 2020, Judge Connolly invalidated five asserted patents as patent ineligible on a single Rule 12 motion. In Sensormatic Electronics, LLC v. Wyze Labs, Inc., C.A. No. 19-1543-CFC, Judge Connolly granted defendant's motion for judgment on the pleadings, invalidating five of seven asserted patents (two of the seven were no longer being asserted).