During the claim construction process, parties identify and offer constructions for claim terms. It is not uncommon for parties to dispute the meaning of words within those constructions but which do not appear in the claims themselves, leading to further refinement of positions during subsequent claim construction exchanges and briefing. Parties may be tempted to ask the Court to separately resolve these "construction within a construction" disputes. Judge Stark recently addressed such a request.
LPS
The Honorable Leonard P. Stark
Last week I wrote about the Xcoal breach-of-contract bench trial, which was adjourned after opening statements due to an "anonymous letter" discussed at a sidebar.
The Court has now unsealed the transcript of that sidebar, which includes the contents of the "anonymous letter" (as read into the record).
It turns out that the letter, signed "Xcoal whistleblower" and sent to defendants' counsel, alleges that plaintiff Xcoal's founder had planned to "cause a default" on the contract at issue, so that the company could collect on a $10 million guarantee that was part of the contract.
It alleges that he planned "to cause default by delayed coal shipments, withhold payments, and extract penalties from [defendant] Bluestone."
The contract involved lab …
The trial in Xcoal Energy & Resources v. Bluestone Energy Sales Corp., C.A No. 18-819-LPS (D. Del.) was adjourned this morning following receipt by the parties of an "anonymous letter." The trial had started yesterday, after the Court previously overruled Xcoal's due process objections to a remote trial.
All of the discussion of the letter was at sidebar, so its contents are not yet public. But it must be something interesting!
The parties had asked for a sidebar immediately after opening statements yesterday. Counsel mentioned that the situation is like "something out of a John Grisham novel."
At the sidebar, they read the "anonymous letter" into the record, and both parties …
Although it requires some reading between the redacted lines, Judge Stark's recent ruling in H. Lundbeck A/S v. Apotex, Inc., C.A. No. 18-88-LPS is worth the effort. It shows that while sometimes exclusion orders leave the door open a crack to introduce the excluded evidence in some other fashion, that is not always the case.
Today, Chief Judge Stark posted a public Zoom link for a bench trial starting Tuesday morning:
The bench trial is available to the public by telephone, using dial in: 1−703−552−8058 Code: 944408, or by video, using the following link: https://trialgraphix.zoom.us/j/93843275500, Meeting ID: 938 4327 5500 and Passcode: 974842. Audio or video reproduction of the proceeding is strictly prohibited.
This is a competitor case involving a contract for the delivery of coal—it's the one where the defendant attempted to delay the trial using due process arguments. Trial is scheduled to start Tuesday and run through Friday:
- Tuesday, August 25: 9 am to 5 pm
- Wednesday, August 26: 9 am to 5 pm
- Thursday, August 27: 8:30 am to 10 …
Chief Judge Stark today denied an emergency request by defendants to delay a remote bench trial scheduled to start next week.
The Court had previously solicited the parties' preferences on how to handle trial and, before the pretrial conference, ordered that the trial would be fully remote. At the pretrial conference, neither party objected to that ruling.
Last week, however, Defendants sought emergency relief to delay the trial in order to convert it to a "partially remote" trial, submitting a declaration from their client that they had not authorized their now-former in-house counsel to agree to a fully virtual trial.
They cited due process rights and the importance of in-person testimony …
In his lengthy ruling on the post-trial motions in Pacific Biosciences, Chief Judge Stark also set forth his views on whether indefiniteness may be tried to a jury, an issue that seems to come up repeatedly:
[Defendant] insists that the Supreme Court's decision in Teva vs. Sandoz[, 574 U.S. 318 (2015),] made indefiniteness an issue exclusively for the court to decide. I disagree. I continue to believe that I have discretion to put . . . indefiniteness before the jury where[,] as here, there are subsidiary fact disputes that inform the indefiniteness decision as a matter of law. [Defendant] has cited no contrary Federal Circuit case.
In fact, instead, the Federal Circuit [has] made clear that indefiniteness is …
On Friday, Chief Judge Stark issued his opinion on post-trial motions in Pacific Biosciences of California, Inc. v. Oxfore Nanopore Tech., Inc., C.A. No. 17-275-LPS-CJB (D. Del.).
You may remember it as the case which made news at the time due in part to the mention of coronavirus in the opening statements.
The trial took place March 9-18, just as the first COVID-19 lock downs were ramping up.
Incredibly, both parties touted coronavirus-related effects of their products in their opening statements at trial. Plaintiff suggested that its product could "help develop a vaccine" for the coronavirus. Defendant went even further:
[Defendant made] a product that is changing lives as we speak. Whether it is helping people …
Speaking of MILs, Chief Judge Stark recently denied two motions that were, "in reality, motions for summary judgment" masquerading as MILs. Xcoal Energy & Res. v. Bluestone Energy Sales Corp., C.A. No. 18-819-LPS (D. Del. Aug. 3, 2020).
The motions were framed as MILS to exclude evidence on the defendants' "fraud-based claims and defenses" and their claim for lost profits. But they actually sought "judgment on particular claims and defenses[,]" and they didn't even mention the Federal Rules of Evidence.
The judge denied the motions outright, explaining that:
“[M]otions in limine should not be used as disguised motions for summary judgment.” Brown v. Oakland County, 2015 WL 5317194 at *2 (E.D. …
When it comes time for expert depositions in multi-defendant cases, parties often disagree about how many deposition hours each side (or more specifically, each party) should get.
Judge Stark addressed this last week in H. Lundbeck A/S v. Apotex Inc., C.A. No. 18-088-LPS (D. Del.), where he permitted seven hours of expert deposition time for common issues and four additional hours for each of the nine defendants for defendant-specific issues.
Plaintiffs' depositions of certain of defendants' experts were expanded as well, to between 9 and 14 hours.
Judge Stark explained that the limits
reflect a reasonable and appropriate exercise of the Court's discretion, considering all circumstances, including the fact that this consolidated case is, in reality, …
