A Blog About Intellectual Property Litigation and the District of Delaware


DED
United States District Court for the District of Delaware

Judge Andrews Draws Clear Line on ANDA Inducement Claim

Andrew E. Russell, June 22, 2020
Inducement ANDA

Pill Bottle
Sharon McCutcheon, Unsplash

Judge Andrews today granted a rare Rule 12(c) motion in an ANDA action, entering judgment against the plaintiffs on their inducement claim based on the pleadings alone.

The method claim at issue requires administering a drug "from about 3 hours to about 1 hour" before a colonoscopy.

The accused product's label includes instructions to administer the drug "start[ing] approximately 5 hours prior to [a] colonoscopy," and then to "drink at least three 8-ounce cups . . . of clear liquids . . . at least 2 hours before" the procedure.

Judge Andrews held that those allegations—even if true—cannot show inducement of infringement, even if in practice some amount of infringement would occur. …

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"Though the Pennypack factors may be very forgiving, they are not a sieve."

Andrew E. Russell, June 19, 2020
Discovery Dispute Pennypack

This is not an illustration of the Pennypack factors in action
This is not an illustration of the Pennypack factors in action Lindsay Cotter, Unsplash

I just came across the above quote, which is from a discovery dispute back in April where Judge Burke struck a very-late-disclosed witness.

It's an interesting—and accurate—description of the Pennypack factors. Most DE patent litigators are familiar with Pennypack, which set forth a loose set of factors for deciding whether to apply the "extreme" sanction of excluding "critical" evidence. Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 905 (3d Cir. 1977).

Even though Pennypack issued way back in 1977, modified versions of its list of factors are still applied today. When they come up, they most often favor the party producing …

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District Court Details Re-Opening Plan

Jeff Castellano, June 16, 2020
COVID-19

The District of Delaware just announced its phased re-opening plan, which starts tomorrow (June 17).

COVID-19
COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

The new “District of Delaware Re-Opening Guidelines” came on June 15, about three months after shutdowns began. During the shutdown, the Court issued a number of orders suspending certain operations and encouraging Judges to shift to videoconference or teleconference proceedings.

Yesterday’s guidelines represent the Court’s first official statement regarding a broader return to in-person operations.

The attached order sets a June 17 start date for Phase One.

Highlights

In all of the Phases, the Court will require face masks and social distancing in common areas, although use of those measures in individual courtrooms is left to the judges. …

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"Sandbagging" and the District of Delaware

Andrew E. Russell, June 3, 2020
Litigation Legal Writing

Sandbags
ideadad, Unsplash

In an R&R this week, Magistrate Judge Burke flatly declined to consider a "critical[]" argument raised for the first time in a reply brief:

In their reply brief, Defendants made one other argument, which they failed to raise in their opening brief . . . . (D.I. 37 at 9 (“Critically, neither of these manuals refer to the named defendants in this case[.]”)) Because this argument could have and should have been raised in the opening brief, it has been waived, and so the Court will not consider it here. See McKesson Automation, Inc. v. Swisslog Italia S.p.A., 840 F. Supp. 2d 801, 803 n.2 (D. Del. 2012); LG Display Co., Ltd. …
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Judge Burke Rejects Defendant's Maybe-Too-Clever Attempt to Escape Delaware

Andrew E. Russell, June 1, 2020
MTD

Magistrate Judge Burke issued an R&R today addressing an interesting procedural situation.

In Shure Incorporated et al v. Clearone, Inc., C.A. No. 19-1343-CJB (D. Del. June 1, 2020), the plaintiff moved to amend to add an additional patent, just before the patent issued.

In response, and before oral argument on the motion, the defendant filed a DJ action on the new patent in another jurisdiction, trying to keep that part of the case out of the District of Delaware.

After the Court granted the motion to amend, plaintiff then moved to dismiss under the first-filed rule.

Judge Burke rejected plaintiff's approach, holding both that the amended complaint related back, so it was filed first, and that …

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Delaware State Courts to Begin Reopening

Andrew E. Russell, May 31, 2020
COVID-19

COVID-19
CDC / Alissa Eckert, MS; Dan Higgins, MAMS

Right now, the District of Delaware has continued all jury trials and jury selection scheduled before June 30, 2020 in light of the COVID-19 pandemic. And while the Court's standing order does not require judges to hold pending oral arguments telephonically or by video, that has been the practice thus far. Shaw Keller has a great summary page.

Delaware State Courts Reopening

The Delaware state courthouses and their administrative offices have been closed to the public since March 23. Their COVID-19 page is here....

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Judge Andrews Rejects Footnote "Incorporating" Eight Pages of Prior Briefing

Andrew E. Russell, May 29, 2020
Litigation Legal Writing

Judge Andrews today rejected a portion of a defendant's objections to an R&R because the defendant set forth its objections in "a footnote, which purport[ed] to include about eight pages of the earlier briefing." Sapp et al v. Industrial Action Services, LLC et al, No. 19-912-RGA, at 10 (D. Del. May 29, 2020) (emphasis added).

He held—perhaps not surprisingly—that this "is an insufficient objection." Id.

That said, he did sustain the same defendant's objections to other portions of Magistrate Judge Burke's R&R, although he called the underlying legal issue a "close call." Id. at 8.

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