A Blog About Intellectual Property Litigation and the District of Delaware


RGA
The Honorable Richard G. Andrews

You Won a Default Judgment? Congratulations! Now File Your Settlement Agreements.

David M. Fry, May 19, 2021
Damages Settlement Agreements

Checkered Flag
Bas van den Eijkhof, Unsplash

Default judgments are uncommon in Delaware patent cases. In the rare instance where a defendant misses an answer deadline, the issue is typically resolved with minimal court intervention, either because the plaintiff agrees to an extension or the court sets aside the entry of default.

But in a recent case against Aston Martin, LLC (brought by Display Technologies, LLC), it appears that a default judgment might actually be moving forward. (Side note: it isn't clear to us whether the correct legal entity was sued or served, and we take no position on that front.)

The complaint was filed in February 2020, the summons was served in May, and the clerk entered a default in July. The plaintiff eventually moved for a default judgment in December, seeking an award of $75,000 to $1 million (based on damages estimates from a client affidavit).

On Monday, Judge Andrews recognized that it would "be necessary to have a hearing in order to determine the amount of damages[,]" but made clear that he wasn't going to take the plaintiff's word for the damages number ...

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Judge Andrews Rejects Theory that Prior Expert Testimony Was a Party Admission

Andrew E. Russell, May 10, 2021
Motion in Limine MIL

Last week, Judge Andrews addressed a serious of motions in limine in Astrazeneca AB v. Zydus Pharms. (USA) Inc., C.A. No. 18-664-RGA (D. Del.). These rulings are often interesting; here, Judge Andrews excluded some former expert testimony as hearsay, rejecting the idea that the testimony was a party admission:

Defendant seeks to exclude testimony and evidence that relate to positions it and its experts took in relation to the patent-in-suit (as prior art) in District of New Jersey litigation involving other patents. . . . The evidence, which is described as trial transcripts, expert reports, invalidity contentions, proposed findings of fact and conclusions of law, and “support documents” (consisting altogether of about fourteen proposed exhibits) is …
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Judge Andrews Again Rejects Stealth Bid for Interlocutory Appeal

Jeff Castellano, May 4, 2021
Final Judgment Interlocutory Appeal

We wrote previously about Judge Andrews' rejection of a proposed stipulation "that dismisses three patents without prejudice so the other two can be appealed," which he said was "just allowing for what is essentially an interlocutory appeal." At that time, he asked the parties to "submit something, jointly or separately, . . . explaining why I should approve the stipulation as is, or, if the other three patents are just fluff, why the three shouldn’t be dismissed with prejudice."

The parties in Malvern Panalytical, Inc. v. TA Instruments-Waters, LLC, C.A. No. 19-2157-RGA took Judge Andrews up on his invitation: Both sides submitted letters in support of their stipulation and proposed judgment, but yesterday Judge Andrews confirmed his earlier view that the proposed judgment was an impermissible bid for an interlocutory appeal, and he declined to enter it.

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Indefiniteness Dooms Computer Bag Claims

Andrew E. Russell, May 3, 2021
Markman Briefing Indefiniteness

Judge Andrews today released a claim construction regarding several computer bag claims. Six of the claims at issue included elements regarding orientation of the opening in a computer bag:

“[pouch] opening[s] [is/are] . . . oriented in a direction substantially parallel to the planar surface”

U.S. Pat. No. 8,567,578
U.S. Pat. No. 8,567,578 U.S. Pat. No. 8,567,578

He found the claims indefinite because a POSITA would not understand the "orientation" of a bag opening, and the specification and prosecution history offered no hints:

At oral argument, [defendant] Victorinox contended that it is impossible to choose between two plausible views as to how to identify the orientation of the pouch opening; the “planar view” articulated by Victorinox and the direction pointing out of the pouch …
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Jury Trials: They're Back!

David M. Fry, April 28, 2021
COVID-19 Trial Calendar

Gavel
Gavel, Bill Oxford, Unsplash

Last week, we asked whether jury trials in Delaware had finally arrived. After a long period of fits and starts, the answer is yes!

Judge Andrews successfully held a jury trial in a criminal case this week, culminating in a "not guilty" verdict today. Everything seems to have gone off without a hitch, with jury selection, preliminary instructions, opening statements, and multiple witness examinations taking place in a single day.

There's a huge backlog of jury trials in D. Del., and the court is still only equipped to hold one jury trial at a time (with a separate courtroom serving as the public observation area). But this is a big step …

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Prior Expert Testimony from IPR Inadmissible in District Court Action

Andrew E. Russell, April 19, 2021
Trial Motion in Limine

Arrows on Sign
Adrià Tormo, Unsplash

In another ruling from the In Re ChanBond litigation as it approaches trial, Judge Andrews today issued an in-depth opinion granting a motion in limine to exclude reference to prior expert testimony from a related IPR proceeding, on the grounds that the testimony is hearsay.

Plaintiff sought to admit the material as former testimony under FRE 804(b)(1), because it is helpful to its infringement case. The rule requires, however, that the former testimony was offered against the parties' predecessor who had "an opportunity and similar motive to develop it."

Here, Judge Andrews found that an IPR petitioner's motive in developing expert testimony to show invalidity is different from a defendant's motive developing its non-infringement position:

I …
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Informal Request for Production at Deposition Insufficient to Preserve Rights Absent Later Formal Request

Andrew E. Russell, April 18, 2021
Document Production Deposition

Judge Andrew's In re Chanbond opinion an Friday focused primarily on reopening discovery, but it also addressed a second issue, which I thought merited a separate post.

Shortly before trial, in a reply brief, Defendants sought production of an "Advisory Services Agreement" between the plaintiff and third party IPNav. They had previously informally requested the document at a deposition, and renewed that request as part of their motion to reopen discovery after the document's importance became apparent in light of the standing dispute. Defendants request at the deposition was apparently on the record, and Plaintiff indicated it would look for the document, but Defendants did not follow up with a formal document request:

I agree with Plaintiff that Defendants …
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Court Denies Request to Reopen Discovery After Third-Party Letter Suggests Possible Standing Issue

Andrew E. Russell, April 18, 2021
Letter Trial

In In Re Chanbond, LLC Patent Litigation, Judge Andrews denied a request for post-pretrial-order discovery on Friday. The request came after Defendants received an e-mail from attorneys from third-party Deirdre Leane alleging that her consent was required for any settlement between the defendants and plaintiff ChanBond:

On September 2, 2020, Defendants received an email from Ms. Leane’s counsel, informing them of a dispute between Ms. Leane and ChanBond. . . . The email stated, “As we read Section 8.3 of the ISA, Ms. Leane’s written consent is required given that a license is a transfer of an interest in the patents-in-suit, which in turn are material assets of ChanBond.” . . . The email warned, “[P]lease take notice …
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Court Rejects Stipulated Dismissal as End-Run Around Requesting Interlocutory Appeal

Nathan R. Hoeschen, April 15, 2021
Interlocutory Appeal

Not today litigants
Not today litigants Pavel Kononenko, Unsplash

We've noted previously that it is tremendously difficult to win a motion for interlocutory appeal in Delaware (and pretty much everywhere else). So it comes as no surprise that litigants—innovators all—will occasionally come up with new ways to achieve the same result without all the difficulties attendant with actually moving. We now know that at least one of these methods does not work.

The parties in Malvern Panalytical, Inc. v. TA Instruments-Waters LLC, C.A. No. 19-2157-RGA (D. Del.) filed a joint stipulation dismissing the 5-patent case following a claim construction opinion that apparently definitively absolved the defendant of infringing 2 of the patents. Id., D.I. 163. The stipulation, however, only dismissed the claims as to those 2 patents with prejudice while specifically reserving the plaintiff's right to "reassert the [remaining] [p]atents in the future, including in the event of a reversal and remand to this Court following the expected appeal from the final judgment entered pursuant to this Joint Stipulation of Non-Infringement." Id.

Despite that fact that this was a joint stipulation ...

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Daubert on Defense

Nathan R. Hoeschen, April 1, 2021
Daubert

This picture of a duck is unrelated to the article
Ross Sokolovski, Unsplash

Under Judge Andrews' form scheduling order, the parties are allotted a certain number of pages for both Daubert and summary judgment briefs. Given how difficult it is to win most Daubert motions in the district, it might sometimes make sense to forego filing one in order to devote more pages to briefing a seemingly stronger SJ motion.

Yesterday, Judge Andrews gave the district a reason to rethink this strategy.

The defendants in M2M Solutions LLC v. Sierra Wireless America, Inc., C.A. No 14-1102-RGA-CJB, moved for summary judgment of non-infringement, relying largely on their expert's opinion that the devices did not practice a particular limitation. D.I. 213 at 3 (D. Del. Mar 31, 2021). The plaintiff responded by pointing to various alleged errors in the defense expert's methodology, but failed to actually file a Daubert motion to strike the opinion. See id. Judge Andrews found this failure fatal to the plaintiff's case, stating:

M2M’s objections may be the appropriate subject of a Daubert motion, but M2M does not cite any authority for the proposition that critiquing an expert’s methodology in the absence of a motion to exclude the testimony is sufficient to create a material dispute of fact.

Id. at 4.

The bit of this opinion that I find interesting is ...

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