A Blog About Intellectual Property Litigation and the District of Delaware


LPS
The Honorable Leonard P. Stark

You'd Have to Be Certifiably Insane to Move for an Interlocutory Appeal

Nathan R. Hoeschen, Nov. 5, 2020
KB Interlocutory Appeal

Attorneys deciding to move for certification of interlocutory appeal
Attorneys deciding to move for certification of interlocutory appeal Oleg Moroz, Unsplash

As we mentioned earlier this week, Judge Noreika issued another in a storied line of Memorandum Orders denying a request to certify an interlocutory appeal. The decision in Arbor Global Strategies LLC v. Xilinx, Inc., C.A. No. 19-1986-MN, D.I. 68 (D. Del. Oct. 30, 2020) was a fairly unremarkable denial, but it caused me to wonder just how rare it is to see one of these granted. So I checked.

As far back as DocketNavigator goes (which is apparently January 2008), I count 23 separate Delaware cases where a party has requested certification. Of those, only four have been granted, the most recent of …

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Summary Judgment Granted Where Doctrine of Equivalents Analysis Merely "Repackaged" Literal Infringement Analysis

Andrew E. Russell, Oct. 30, 2020
DOE SJ

Chief Judge Stark this week granted a motion of non-infringement under the doctrine of equivalents due to the slim DOE analysis relied on by the patentee's expert.

Interestingly, the expert had offered some testimony framed in terms of the usual function-way-result DOE test:

[T]he Accused Products perform substantially the same function (producing densitometry/densitometric models for use in assessing bone density), in substantially the same way (determining linear attenuation coefficients of an object in several tomographic scans and combining this information using the Feldkamp algorithm to determine the grayscale values of voxels and the corresponding HU units thereof of a 3D CBCT volume of the object), to achieve substantially the same result (3D volumes that include information for depicting quantitative differences …
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Chief Judge Stark Strikes Expert Opinions Under Pennypack

Andrew E. Russell, Oct. 21, 2020
Expert Discovery Motion to Strike

Pennies.
Pennies. Mark Bosky, Unsplash

I always find it interesting to see what kinds of facts that can succeed in a motion to strike. As I've mentioned, motions to strike in the Third Circuit are governed by the Pennypack factors, which can be tricky to meet and often favor lesser remedies (although the Court does strike things).

Here is what it took to warrant striking portions of an opening infringement report Arendi S.A.R.L. v. LG Electronics, C.A. No. 12-1595-LPS (D. Del.):

  • Disclosing infringement contentions against five new products for the first time;
  • Relying on previously undisclosed evidence;
  • Doing so in the 8th year of a case (albeit one currently without a trial date); …
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D. Del. Schedules November 30 Patent Jury Trial, Imposes Restrictions

Andrew E. Russell, Oct. 19, 2020
Scheduling Jury Trials

Chief Judge Stark on Friday scheduled the first post-COVID-19 patent jury trial that I've seen, in Guardant Health, Inc. v. Foundation Medicine, Inc., C.A. No. 17-1616-LPS-CJB, D.I. 487 (D. Del. Oct. 16, 2020). (The potential Judge Noreika trial I mentioned recently is not going forward).

The Court had offered the November 30 date late last month. The defendant objected to it due to a conflict. The defendant also argued that the jury pool will not be representative, lacking older jurors, and that holding a trial would go against CDC guidance.

The Court was not persuaded. It did, however, set the following restrictions:

  • No live witnesses: The Court accepted a proposal that since not all witnesses can …
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101 Days Are Not Always Funerals for Patents

Nathan R. Hoeschen, Oct. 15, 2020
KB 101 Day

Artist's Rendering of First 101 Day Hearing
Artist's Rendering of First 101 Day Hearing Execution of Mary, Queen of Scots, from "Illustrated London News", William Luson Thomas

It was not so long ago that plaintiffs might enter a § 101 day hearing before Judge Stark with hats in hands, ready to plead for any small mercy. To some, having one's case set for a § 101 day hearing was to know the day and the hour. But that was back in the heady days of early 2019. With two new § 101-day rulings issued by Judge Stark just this week, plaintiffs need no longer dread these (approximately) quarterly events.

Claims of All Three Patents Invalidated At Inaugural § 101 Day

At the inaugural hearing in …

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Don't Get Your Hopes Up for a New District of Delaware Patent Jury Trial Date in 2020

Andrew E. Russell, Oct. 14, 2020
Scheduling Jury Trials

Unsurprisingly, in light of COVID-19, recent signs indicate that the Court is all booked up for this year, and probably for a large part of next year.

Here, for example, is a Judge Stark order from yesterday:

ORAL ORDER: Having discussed with the parties on repeated occasions whether and when to schedule this patent infringement case for a jury trial (see, e.g., D.I. 474, 549, 583, 590, 591, 593, 596, 605, 607, 608, 610-15) and having found (unfortunately) no date that is reasonable and available to all parties and to the Court, IT IS HEREBY ORDERED that trial in this matter is CONTINUED to a DATE TO BE DETERMINED, most likely in 2021 (and certainly NOT in 2020). IT …
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Judge Stark Addresses Jury/Judge Responsibilities on Willfulness, Pushes Trial Date

Jeff Castellano, Oct. 13, 2020
Willfulness COVID-19

Judge Stark recently adopted Judge Burke's recommendation that the Court deny a motion for summary judgment of no willful infringement, despite the defendant's objection that the key piece of authority underlying Judge Burke's decision issued after the summary judgment motion was filed. Judge Stark also pushed the November jury trial, but possibly by just a few weeks.

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Additional Sanctions In My Favorite Delaware Case

Nathan R. Hoeschen, Oct. 1, 2020
Sanctions

The Court (top center, riding an eagle) ordering additional sanctions
The Court (top center, riding an eagle) ordering additional sanctions Jupiter Fighting the Giants, Jacopo Zucchi

Following on Yesterday's post where we noted the odd and pleasing use of "Kludgy," I would like to use today's post to bring attention to another recent Delaware opinion which contains what I can only assume is the only use of the phrase "[y]ou can work with legal but at the end you will have your face burried [sic, obviously] in s***!" in a legal opinion.

The case is Citrix Systems, Inc. v. Workspot, Inc., C.A. No. 18-588, D.I. 411 (D. Del. Sept. 25, 2020), and it is a true ray of light in these dark days.

The opinion describes …

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Updated Zoom Link for Today's Xcoal Trial

Andrew E. Russell, Sept. 15, 2020
COVID-19

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 …

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Chief Judge Stark Reschedules Xcoal Trial, Says "This District Hopes and Expects to Resume Jury Trials . . . This Month"

Andrew E. Russell, Sept. 8, 2020
Litigation COVID-19

Artists' rendering of the anonymous letter
Artists' rendering of the anonymous letter Brando Makes Branding, Unsplash

Chief Judge Stark today rescheduled the Xcoal trial for Wednesday of next week. The trial was previously derailed following receipt of an anonymous letter just after opening statements.

The opinion (embedded below) has a great summary of the facts of the trial so far, which are very unusual.

In resuming the trial quickly, he hoped to deter others from sending similar "anonymous letters" to interfere with other trials. He also noted that this is the only time the Court will have available for bench trials in the near future, because of the backlog of criminal and civil jury trials which should start back this month:

[T]his District hopes and …
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