A Blog About Intellectual Property Litigation and the District of Delaware


Patent
Patent

Party Scores Hole in One, Invalidates Asserted Claims of Patent at SJ

Andrew E. Russell, Nov. 23, 2022
MSJ Summary Judgment

The Court has said in the past that "winning summary judgment in a patent case is like hitting a hole in one." Well, yesterday DePuy Synthes scored a hole in one, invalidating all asserted claims of one patent on SJ in RSB Spine, LLC v. DePuy Synthes Sales, Inc., C.A. No. 19-1515-RGA (D. Del. Nov. 22, 2022).

How Did They Do It?

Basically, they won it at claim construction, but couldn't end the case until summary judgment.

The patent at issue, U.S. Patent No. 6,984,234, covers a "base plate" that a surgeon can screw into two bones in a person's spinal cord to stabilize them.

The base plate screws into the bones (blue, below), and a …

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Now a Defendant in a Mavexar Case—Not a Plaintiff—Has Moved for a Protective Order

Andrew E. Russell, Nov. 21, 2022
Litigation Funding Standing Orders

"Lamplight" isn't the worst name for a patent assertion entity. Riley Bourdon, Unsplash

Today brought yet another twist in the ongoing Mavexar saga. In one of the cases, a defendant—not the plaintiff—moved unopposed for a protective order to prevent the Mavexar-related LLC from producing the documents that the defendant sent to it (and that, presumably, the Mavexar-related LLC may have sent to Mavexar itself).

Specifically, the defendant moved for a protective order to "prevent the public filing of three categories of information that ABB expects to be provided by Plaintiff and its counsel in response to the Court’s Memorandum Order," including (1) documents related to sales and royalty rates, (2) communications related to the terms of the settlement agreement, and (3) the agreement itself.

As to those three categories, the defendant asked the Court to issue a protective order that protects the info from disclosure in both filings and in future hearings or ...

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In Response to Mandamus Petition, Federal Circuit Stays Mavexar Order

Andrew E. Russell, Nov. 18, 2022
Litigation Funding Standing Orders

Stop
Markus Spiske, Unsplash

These Mavexar-related cases are developing so fast, we can hardly keep up!

We've talked about how Chief Judge Connolly issued an order directing certain of the Mavexar-related entities to produce documents, including materials related to their communications with Mavexar. We also discussed the Nimitz entities' petition for a writ of mandamus to stop enforcement of the order and to stop the Court's "judicial inquisition."

Yesterday, the Federal Circuit responded and stayed the order:

IT IS ORDERED THAT:
Defendants CNET Media, Inc., Bloomberg L.P.; BuzzFeed, Inc.; and Imagine Learning, Inc. are directed to respond to the petition no later than November 30, 2022, whether defendants fully defend, partly defend, or decline to defend the challenged order. …
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Mavexar Entity Petitions for Writ of Mandamus to Stop Court's "Judicial Inquisition"

Andrew E. Russell, Nov. 16, 2022
Litigation Funding Standing Orders

Nimitz-Class Aircraft Carrier
Nimitz-Class Aircraft Carrier Unknown

Yesterday, Nimitz Technologies LLC, one of the entities involved in the recent Mavexar hearings, filed a petition for a writ of mandamus with the Federal Circuit to "review and reverse" the Court's most recent memorandum order in those cases, and to "direct[] the district court to terminate its judicial inquisition of the Petitioner."

If you recall from our post last week, the Court issued an order in three of the Mavexar-related cases directing Nimitz and two other plaintiffs to disclose a broad range of communications and documents, including things like retention agreements, bank account statements, and communications between the plaintiffs or their principals or attorneys and Mavexar.

Nimitz argues that the documents and communications …

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Judge Andrews Grants Motions in Limine Regarding Prior Proceedings and Total Revenues—Here's Why These Are Helpful Motions

Andrew E. Russell, Nov. 16, 2022
Trial Practice Trial Procedure

"Sure our damages figure sounds big, but look how big this other number is!" AI-Generated, displayed with permission

This week, Judge Andrews issued an order on the six motions in limine that the parties filed in Sprint Communications Company, L.P. v. Mediacom Communications Corp., C.A. No. 17-1736-RGA (D. Del. Nov. 14, 2022).

The order is short and to the point, and doesn't identify what the MILs relate to. But if the docket shows that there are at least two MILs here worth mentioning, if only because they come up so often.

Prior Proceedings

The defendant first moved to exclude the outcomes of multiple prior cases, as well as pending cases against co-defendants. Plaintiff responded that the prior …

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Two Thirds of Latest Round of Cases Consent to Magistrate Judge Jurisdiction Rather Than Getting an Unknown Visiting Judge

Andrew E. Russell, Nov. 14, 2022
Visiting Judges Congestion

"If we don't consent, which visiting judge do you think we'll get?" Hush Naidoo Jade Photography, Unsplash

We've talked before about Chief Judge Connolly's orders that allow parties to choose to either consent to a specific magistrate judge or to have the case assigned to a visiting judge.

Last month, the Court issued those orders in six patent cases. All of the orders followed the same pattern as last time, giving the choice between a specific magistrate judge or an unknown visiting judge:

ORAL ORDER: It is HEREBY ORDERED that on or before November 1, 2022, the parties shall either (1) submit to the Clerk of Court an executed Form AO 85 Notice, Consent, and Reference of a Civil Action to a Magistrate Judge, indicating their consent to have a United States Magistrate Judge conduct all proceedings in this case including trial, the entry of final judgment, and post-trial proceedings; or (2) file a joint letter indicating that all the parties do not consent to a referral of this action to a Magistrate Judge. The letter should not indicate which party or parties did not consent. If all the parties consent, the case will be referred to Magistrate Judge Burke. Because of the Court's caseload, if the parties do not consent, the Court intends to assign the case to a visiting judge from another district. Ordered by Judge Colm F. Connolly on 10/18/2022.

These orders started last year, before Judge Stark's departure for the Federal Circuit. It makes sense that the Court is sticking with ...

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A New Visiting Judge for D. Del. Patent Cases: Senior United States District Judge Joel H. Slomsky of the Eastern District of PA

Andrew E. Russell, Nov. 14, 2022
Visiting Judges Congestion

Philadelphia
Dan Mall, Unsplash

I noticed a new visiting judge here in the District of Delaware this month: Senior United States District Judge Joel H. Slomsky of the Eastern District of PA.

To my knowledge, Judge Slomsky has not previously served as a visiting judge in the District of Delaware, other than signing one stipulation on an emergency basis back in 2010. It looks like Judge Slomsky took on four patent cases this month.

Welcome, Judge Slomsky!

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Court Orders Three Mavexar-Related Plaintiffs to Produce Communications with Mavexar, Attorney Retention Agreements, Bank Account Statements, and Sworn Declarations Regarding Assets

Andrew E. Russell, Nov. 10, 2022
Mavexar NPE

Uh-oh.
Uh-oh. AI-Generated, displayed with permission

Shortly after today's hearing regarding compliance with Chief Judge Connolly's standing orders, the Court issued orders in each of the cases from the similar hearing last week, requiring production of a broad range of communications among the plaintiffs, Mavexar, and their attorneys.

The Court issued similar orders in each case, each setting forth the Court's concerns:

Whereas the testimony of witnesses and representations of counsel at the November 4, 2022 hearing give rise to concerns that include but are not limited to the accuracy of statements in filings made by [each plaintiff] with the Court and whether the real parties in interest are before the Court;

The Court then issued production of …

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Standing Order Hearings: Court Questions Head of NPE LLC Who Is Married to Attorney at Mavexar

Andrew E. Russell, Nov. 10, 2022
Mavexar Piercing the Corporate Veil

"This is how I'm going to explain to my wife why she should have an LLC that holds our company's patents." AI-Generated, displayed with permission

Chief Judge Connolly held another hearing today regarding compliance with his standing orders on litigation funding, this time exploring the relationship between NPE plaintiff Backertop Licensing LLC and MAVEXAR, the entity that is said to have created Backertop.

Last week's hearing involved testimony from a sales person and a restaurateur who owns a food truck, each of whom had been recruited by MAVEXAR to be the sole member of a patent assertion NPE, as an "investment" opportunity or a way to make "passive income."

Each "owner" received either 5% or 10% of the …

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A Handy Transcript

Andrew E. Russell, Nov. 9, 2022
Contentions KB

Bookmarks
Chiara F, Unsplash

I thought I'd share an old transcript that has come in handy a number of times since it issued back in 2013, where Judge Andrews made a helpful ruling about how and when patentees must respond to conception date interrogatories—an issue that comes up frequently.

In Vehicle Interface Techs., LLC v. Jaguar Land Rover N. Am., LLC, C.A. No. 12-1285-RGA (D. Del.), the defendant filed a discovery dispute to compel a full response to an interrogatory asking for the date of conception and reduction to practice.

The patentee had responded, but the answer was not very helpful. According to the discovery dispute letter:

[The patentee] stated that the sole inventor . . …
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