We haven't written about Mavexar for a while. But a new order today shows that the Court hasn't let up.
We discussed last year how, following a hearing in which the nature of Mavexar came out, the Court ordered the parties and attorneys in some of the Mavexar cases to submit to the Court a broad range of communications among the plaintiffs, Mavexar, and their attorneys.
Today, the Court issued a similar order in an additional case, Backertop Licensing LLC v. Canary Connect, Inc., C.A. No. 22-572-CFC (D. Del.). That case was the one at issue in the November 10 hearing, where the owner of Backertop testified that she is a paralegal who is married to …
In most patent cases that make it through trial, the losing party files a post-trial motion seeking judgment as a matter of law (JMOL), asking the judge to override the jury and find for them instead. It seems fairly uncommon to see a case that went to trial and did not settle that doesn't involve a post-trial JMOL motion from one side or the other.
Under the federal rules, to file a post-trial JMOL motion under FRCP 50(b), you must first file a JMOL motion during trial under FRCP 50(a). That motion must be made before the case is is submitted to the jury, and must "specify the …
It seems like only yesterday I was discussing the rare case where a third party moved to unseal the docket in a DE case. In fact, it was 12 days ago—time flies when blogging.
AI-Generated, displayed with permission
Well it happened again, and this time we have an opinion.
The intervenors in CBV, Inc. v. ChanBond, LLC, C.A. No. 21-1456 (D. Del. Mar 28, 2023) (Mem. Order) were shareholders in the defendant, Chanbond, who sought to unseal various and sundry filings including the complaint, answer, and briefing on a TRO. The parties (perhaps readers of the blog?) largely agreed to unseal the filings but insisted that the dollar amount of a confidential settlement agreement should remain redacted.
Typically, actual dollar amounts contained in confidential agreements are one of the few things that pass muster on a motion to seal. The twist was that the dollar amount had accidentally been filed publicly in a different case months earlier.
Billy tells secrets, it is his truest natureAI-Generated, displayed with permission
Oops.
Nevertheless, the parties (as well as several third-party signatories to the agreement who submitted their own briefs) insisted that ...
"From now on, your discovery disputes will be heard at the summit . . . "Alexander Milo, Unsplash
It's always good to know the limits when it comes to discovery disputes. In some cases, parties just can't seem to work together on discovery, and the parties end up bringing a lot of disputes.
At some point, the number of disputes may push the Court over the line. Famously (in Delaware—so perhaps not "famously" at all), former Chief Judge Sleet used to limit parties to three discovery disputes in patent cases before requiring them to seek leave. I don't know of any similar explicit limits set by any of our current judges, but pushing things too far can still …
There are only so many ways to get rid of claims early in the case. One of them is arguing indefiniteness at claim construction, for the judges who permit that.
Indefiniteness at Markman typically invoves either a Nautilus-style argument about a term lacking reasonable certainty, or a § 112 ¶ 6 argument that a means-plus-function term lacks corresponding structure in the specification.
Today, Judge Andrews addressed such a § 112 ¶ 6 argument, and found both that software terms reciting an "engine" were means-plus-function terms, and that the terms lacked corresponding structure in the specification. First, he found that "engine" is a "nonce word" that doesn't refer to a specific structure—breaking with at least one case that found the opposite:
I agree with Defendant that “analysis engine” is a means-plus-function limitation. Defendant has overcome the presumption that “analysis engine” is not subject to § 112, ¶ 6 by showing the claim fails to “recite sufficiently definite structure.” . . . The parties agree that an “engine” in this context refers to a program or part of a program to perform a function or manages data. . . . “Engine” appears to be synonymous with “module,” which is recognized as a common “nonce” word. Williamson, 792 F.3d at 1350 (finding “module” to mean “a generic description for software or hardware that performs a specified function” to be a “well-known nonce word”); see also Parity Networks, LLC v. ZyXEL Commc'ns, Inc., 2020 WL 8569299, at *6 (C.D. Cal. Dec. 22, 2020) (finding “engine” was a nonce word in the term “multicast engine”). But see Stragent, LLC v. Amazon.com, Inc., 2011 WL 13152568, at *4 (E.D. Tex. June 27, 2011) (finding “engine” conveyed structure and was not subject to § 112, ¶ 6).
The argument that the "analysis engine" was part of the novelty of the patent was not enough to save it—and that argument may have even hurt the plaintiff ...
Judge Fallon made an opinion public today that deals with whether a plaintiff can get discovery on unlaunched, abandoned, and future products in the lead up to a preliminary injunction hearing. The Court held that discovery on those products was not proportional to the needs of the case:
Zwift has shown that the document discovery requested by Wahoo is not proportional to the needs of the case at this stage of the proceedings. (D.I. 72) The complaint establishes that Wahoo was aware of Zwift’s unlaunched and abandoned hardware products, yet it did not raise these products in its motion for a preliminary injunction, indicating that the relevance of the requested discovery to the preliminary injunction inquiry …
Photograph of all of plaintiff's likelihood of success arguments securely located in one basket.Court, Unsplash
Judge Williams ruled on a preliminary judgment motion yesterday in Cirba Inc. v. VMWare, Inc., C.A. No. 19-742-GBW (D. Del. Mar. 9, 2023). In that case, the plaintiff had originally gone to trial back in 2020, and won a $237 million jury verdict, plus a jury finding of willful infringement. Id., D.I. 550 at 6.
The Court previously vacated that win, however, because it turns out that one of the plaintiffs, Cirba Inc., had assigned all rights in the patent at issue to another entity, Cirba IP. The Court held that the re-assignment meant that Cirba Inc. lacked standing such that it should not have been part of the trial, and that including Cirba Inc. in the trial impacted the arguments enough to warrant a new trial. Id. at D.I. 752, 946.
Yesterday, the Court addressed plaintiff's motion for a preliminary injunction pending the new trial. It looks like it was an easy decision for the Court, because plaintiff relied entirely on the previous trial win to show a likelihood of success—despite the fact that the Court had granted a new trial:
Rather than brief why it will likely prove infringement, Cirba summarily states that it "is likely to succeed on the merits of its patent infringement claim because it already has," referring to the vacated verdict from the first trial. . . . This Court, however, granted VMware's motion for a new trial. . . . "[I]t is quite clear, that the order granting the new trial has the effect of vacating the former judgment, and to render it null and void, and the parties are left in the same situation as if no trial had ever taken place in the cause." United States v. Ayres, 76 U.S. 608, 610 (1869). Thus, Cirba has made no "clear showing" that it will likely prove infringement.
It's not hard to see what plaintiff was thinking here. On the surface, the Court ...
Just last week, we wrote about Judge Noreika ordering an in-person meet-and-confer to occur between lead trial counsel regarding claim terms, in the courtroom in Delaware, and "continuing until excused by the Court." In ordering the in-person meet-and-confer, Judge Noreika noted that the parties had "spoke[n] for just 20 minutes about 10 disputed terms" during their meet-and-confer.
Yesterday, Chief Judge Connolly issued an order along similar lines—but outright canceling the Markman hearing. Like Judge Noreika did, the Court noted that the parties had failed to adequately meet-and-confer about a disputed term:
Plaintiffs first made their new proposal [to construe "tangent"] during the "meet and confer" discussion required by paragraph 13 of the Revised Scheduling Order. . . …
Is the reign of Pennypack coming to an end?AI-Generated
We talked earlier this year about a decision by Judge Burke that struck a parties' final infringement contentions under a good cause standard, and declined to apply the much looser Pennypack standard.
Today, citing Judge Burke's opinion, Judge Williams likewise declined to rely on Pennypackin striking late-served "Amended Final Invalidity Contentions":
According to the Court's Scheduling Order, Defendants must serve their Final Invalidity Contentions to Chervon by December 17, 2020, which they did so. D.I. 37 if 7(f). On July 27, 2022, Defendants served their Amended Final Invalidity Contentions. D.I. 316 at 1; D.I. 319 at 1. Defendants did not request leave from the Court to amend their Final …
Judge Noreika is well known at this point for requiring real, substantive meet-and-confers on claim construction. In multiple cases, she has directed parties to further meet-and-confer after finding their initial efforts insufficient.
She issued another such order this week, this time directing the parties to have what appears to be a supervised meet-and-confer, in person in the courtroom:
ORDER . . . The parties did not comply with the Court's February 13, 2023 Oral Order requiring a good-faith meet and confer. Instead, the parties spoke for just 20 minutes about 10 disputed terms, as well as "hearing logistics" and a proposal by MarkForged to request deferral of certain claim constructions until dispositive motions. There is no breakdown indicating …
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