A Blog About Intellectual Property Litigation and the District of Delaware


RGA
The Honorable Richard G. Andrews

Court Finds Late Doctrine of Equivalents Theory Prejudicial Because Adding DOE "Creates a New Ballgame"

Andrew E. Russell, July 31, 2020
Expert Discovery Pennypack

Remember these?
Remember these? Tim Gouw, Unsplash

It can be tough to get late-produced theories or evidence excluded in Delaware, because the Court must apply the permissive Pennypack factors that typically favor admission.

The factors include prejudice, ability to cure any prejudice, disruption of trial, and bad faith/willfulness.

But lately, the Court seems to be granting more motions to strike such theories. Today, Judge Andrews granted a motion to strike a late DOE theory offered for the first time in a reply report.

Judge Andrews Isn't Messing Around

He shot down the Pennypack factors in four short and to-the point paragraphs.

As to the first factor, he found prejudice because admission of a late theory requires …

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Judge Andrews Sets COVID-19 Guidelines for September ANDA Trial

David M. Fry, July 29, 2020
COVID-19

COVID-19
CDC / Alissa Eckert, MS; Dan Higgins, MAMS

This afternoon, Judge Andrews set guidelines for a bench trial that's scheduled to start on September 14, 2020. The trial will include some live witness testimony (from "the five or so witnesses who are able to testify in person"), along with video testimony from "[t]he three or so witnesses who are unable or unwilling to testify in person[.]"

Only a small number of attorneys will be allowed in the courtroom ("probably two per side"), and "[m]asking and social distancing will be enforced." Everyone else will have to watch the proceedings via live stream, with the expectation "that very few people will decide it is necessary to come to the courthouse."

Stay tuned …

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Judge Andrews Relays Comments on Value of Predictability in a Judge

Andrew E. Russell, July 20, 2020
Precedent Protective Order

In ruling on a protective order dispute today, Judge Andrews wrote:

Urban legend has it that one of my predecessors said he is not bound by his own prior decisions. But I have also heard many times that lawyers believe that predictability in a judge is a really good thing. Thus, since it seems to me that the considerations here are no different than they were in the prior case, I should make the same ruling here.

IP/DE takes no official position as to which previous judge he may be referring...

His Ruling Was Also Worth Noting

The protective order dispute concerned cross-use by a plaintiff of defendants' confidential information in a multi-defendant ANDA action.

Plaintiff' proposal allowed …

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Another Jury Trial Postponement

Andrew E. Russell, July 20, 2020
COVID-19

COVID-19
COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

Last week, in between Judge Stark's postponement of the Sunoco trial and the Court's extention of its ban on jury trials, Judge Andrews also postponed a scheduled August 18 jury trial, without setting a new trial date:

ORAL ORDER: The jury trial scheduled for August 18, 2020, is POSTPONED. Ordered by Judge Richard G. Andrews on 7/15/2020. (nms) (Entered: 07/15/2020)

ChanBond, LLC v. Atlantic Broadband Group, LLC, C.A. No. 15-842-RGA, D.I. 513 (D. Del. July 15, 2020).

He continued the trial after defendants' counsel filed an essentially unopposed request based on rising COVID-19 rates, the importance of live testimony, and the fact that plaintiff is an NPE.

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No One Wants to Fly to Delaware in a Pandemic

Nathan R. Hoeschen, July 16, 2020
Jumara Transfer

Plane in turbulence
Turbulence, Joshua Hoehne, Unsplash

Judge Andrews recently dropped this intriguing paragraph modifying the balancing of the Jumara transfer factors in light of COVID-19:

Currently, the COVID-19 pandemic is ongoing. Hopefully, things will get better, but the pandemic has highlighted that there can be risks associated with travel. Some people who would not have been worried about travel before the pandemic are now reluctant to travel. I believe it is appropriate to give slightly greater weight to the possibility of less risk associated with less travel, which would favor the [transfer] venue.

The opinion is otherwise a bog-standard grant of transfer where both parties were incorporated in Delaware but had no other real connection. It's quite rare to see any …

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§ 101 Denial Based on Representations in Complaint and Claimed Features

Andrew E. Russell, July 6, 2020
MTD § 101

In a brief § 101 opinion today, Judge Andrews denied a MTD based solely on Alice step 2. He relied primarily on allegations in the complaint that various claimed features of the invention were not routine or conventional:

Plaintiff . . . alleges in its amended complaint that the [asserted] claims incorporate “inventive concepts that were not well-understood, routine, or conventional at the time” of invention. . . . For example, the amended complaint alleges that some claims teach ways of displaying performance parameters so that users of both live and archived classes can compete with one another. . . . The amended complaint alleges that these functionalities were nonroutine and unconventional at the time of the invention and helped …
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Court Posts Public Dial-In for Virtual Bench Trial Starting Today

Andrew E. Russell, July 6, 2020
Virtual Trial Bench Trial

Gavel
Gavel, Bill Oxford, Unsplash

Judge Andrews is holding a virtual bench trial in a contract action today. The Court posted a dial-in for public access:

Remark: The public may access the Bench Trial scheduled to start 7/6/2020 by dialing the following phone number: 571-353-2300, then enter 792973273. The dial-in information provides listening capabilities only. (crb) (Entered: 07/06/2020)

Judge Andrews set forth his reasoning for holding a virtual trial in an order in June:

I had a teleconference with the parties on June 5. I suggested a virtual trial. I did not think it was fair for one side to have lawyers in the courtroom while the other side did not. A virtual trial (by which …
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Judge Andrews Draws Clear Line on ANDA Inducement Claim

Andrew E. Russell, June 22, 2020
Inducement ANDA

Pill Bottle
Sharon McCutcheon, Unsplash

Judge Andrews today granted a rare Rule 12(c) motion in an ANDA action, entering judgment against the plaintiffs on their inducement claim based on the pleadings alone.

The method claim at issue requires administering a drug "from about 3 hours to about 1 hour" before a colonoscopy.

The accused product's label includes instructions to administer the drug "start[ing] approximately 5 hours prior to [a] colonoscopy," and then to "drink at least three 8-ounce cups . . . of clear liquids . . . at least 2 hours before" the procedure.

Judge Andrews held that those allegations—even if true—cannot show inducement of infringement, even if in practice some amount of infringement would occur. …

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"Sandbagging" and the District of Delaware

Andrew E. Russell, June 3, 2020
Litigation Legal Writing

Sandbags
ideadad, Unsplash

In an R&R this week, Magistrate Judge Burke flatly declined to consider a "critical[]" argument raised for the first time in a reply brief:

In their reply brief, Defendants made one other argument, which they failed to raise in their opening brief . . . . (D.I. 37 at 9 (“Critically, neither of these manuals refer to the named defendants in this case[.]”)) Because this argument could have and should have been raised in the opening brief, it has been waived, and so the Court will not consider it here. See McKesson Automation, Inc. v. Swisslog Italia S.p.A., 840 F. Supp. 2d 801, 803 n.2 (D. Del. 2012); LG Display Co., Ltd. …
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