This is a "weight-shift controlled personal hydrofoil watercraft"U.S. Patent No. 9,359,044
Here at IP/DE, we try to have substantive, funny posts where we can all learn something about litigation in DE while being mildly amused.
Sometimes, though, all we get to be is mildly amused. This will be one of those posts.
Just look at this oral order:
ORAL ORDER: The deadline for Waydoos brief in opposition to the Motion for Permanent Injunction is extended to five minutes after I resolve the pending motion to withdraw (assuming I permit withdrawal) or until a date to be set (assuming I deny permission to withdraw). I note that the record to date appears to support the conclusion that Waydoo is …
The big apple: The home of the Statue of Liberty, the Empire State Building, and (apparently) precedent permitting late-served cross-motions for summary judgment.Michael Discenza, Unsplash
In Fundamental Innovation Systems International LLC v. Anker Innovations Ltd., C.A. No. 21-339-RGA (D. Del.), plaintiff moved for summary judgment of patent eligibility, and defendant filed an answering brief.
At the same time as its answering brief, however, defendant filed a late "cross-motion" for summary judgment, asking the Court to not only deny plaintiff's motion, but to grant summary judgment of ineligibility. Defendant devoted about 9 pages of its 40-answering brief to arguing against plaintiff's motion and in favor of its own affirmative "cross-motion" for a determination of ineligibility.
It's impressive when an attorney files a short letter and gets the Court to do something that it is not often inclined to do.Immo Wegmann, Unsplash
The District of Delaware generally suspended its mediation program in 2021, and mediations before a magistrate judge rarely happen in patent cases these days (although they do sometimes happen in some other cases, such as employment cases).
Since then, parties have sometimes moved to private mediations—especially when ordered to—but generally in my experience the overall number of cases that go through mediation has declined, and there aren't a huge number of local patent-case mediators.
When we last discussed this, we noted from comments at the 2023 Bench and Bar conference that …
The doctrine of equivalents is often treated as the legal equivalent of going "c'mon....c'mon! its all the same."
AI-Generated, displayed with permission
It's not uncommon to see it included in infringement contentions in terms that just note that, to the extent the noodlewiggler (TM) does not literally infringe claim 38 of of the '123 patent, it's insubstantially different, and performs the same function in the same way to achieve the same result, and is lame."
Judge Andrews issued an opinion today that neatly illustrates the problem with that tactic. The defendant in Carrum Techs., LLC v. Ford Motor Comp. C.A. No. 18-1647-RGA (D. Del. Nov. 9, 2023) (Mem. Op.) moved for summary judgment on the basis of a …
By definition, you raise it after your would normally file a motion to dismiss, as the pleadings are closed. You can file one as late as you want, as long as it's "early enough not to delay trial." Honestly, I'd never seen a motion denied for being too late—until now!
He's a slow readerAI-Generated, displayed with permission
The defendant in Ecolab Inc. et al v. DuBois Chemicals, Inc., C.A. No. 21-567-RGA (D. Del. Oct. 25, 2023) filed a motion for judgment on the pleadings at the same time as its SJ and Daubert motions, which was about 5 months before trial. Neither party devoted more than a few of their 40 allotted pages to the 12(c) motion—focusing instead on the SJ and Daubert issues.
(Note—the parties managed to fit the 12(c) motion briefing into their overall page limits for "dispositive motions" in the scheduling order. I think that's probably correct, but I've never seen an opinion actually addressing whether a later-filed 12(c) motion must adhere to those limits. It certainly looks like gamesmanship to give yourself an extra 20 page brief at summary judgment time, but what about a 12(c) motion filed 6 months earlier? Would those pages need to be deducted from a later SJ motion page count? I encourage someone braver than me to give it a try and see how it goes.)
Both parties in Wrinkl, Inc. v. Meta Platforms Inc., C.A. No. 20-1345-RGA (D. Del.) agreed that the case should be dismissed after the PTAB invalidated 50 of the 54 asserted claims, but disagreed about whether the remaining 4 claims should be dismissed with prejudice.
The plaintiff claimed that it did not intend to assert the remaining claims, but that it should retain the right to, and that it is unaware of caselaw holding that the Court cannot dismiss some claims with prejudice and some without.
The defendant argued that the Court cannot split up the claims, and must dismiss all or nothing with prejudice:
Defendants contend there is no legal support or precedent …
Judge Andrews issued a claim construction opinion today resolving an interesting dispute.
The parties disagreed as to whether the patentee had acted as its own lexicographer. Here is the text from the patent spec:
As used herein, the term “plant” includes reference to whole plants, plant organs (e.g., leaves, stems, roots, etc.), seeds and plant cells and progeny of the same. “Plant cell,” as used herein includes, without limitation, seeds, suspension cultures, embryos, meristematic regions, callus tissues, leaves, roots, shoots, gametophytes, sporophytes, pollen, and microspores.
Pioneer Hi-Bred International, Inc. v. Syngenta Seeds, LLC, C.A. No. 22-1280-RGA, D.I. 72 (D. Del. Aug. 2, 2023).
Seems pretty clear, right?
Not so much, according to the plaintiff. It argued that one of the specification's definitions shouldn't apply to the term as it was used in the claim. Here is ...
Judge Andrews appeared to break new ground in ODTP law yesterday with his post-trial opinion in Allergan USA, Inc. v. MSN Labs. Private Ltd., C.A. No. 19-1727-RGA (D. Del. Sept. 27, 2023).
AI-Generated, displayed with permission
(eds. note - I refuse to abbreviate it "Lab'ys." The legal profession has committed more than its fair share of dark linguistic sins, but if Shakespeare wasn't long dead this would have killed him. Actually, check on your favorite author to make sure they survived this edition of the bluebook).
Anyway.
The issue arose in the unusual case where a patent issued and received a term extension of a few hundred days. The patentee filed a continuation which issued a few years later. Because the continuation did not receive a term extension it actually expired before the first patent. Plaintiff (Allergan) submitted this helpful chart with the briefing:
Seriously, it's a nice chart!Allergan
Id., D.I. 428 at 4 (Joint Status Report, Plaintiffs' position)
The parties agreed the relevant claims of the two patents were not patentably distinct—the issue was, does ODTP apply in where the first-filed, and first-issued, patent is the one being invalidated?
The Federal circuit had recently answered part of that question in In re Cellect, LLC, 2023 WL 5519716, at *9 (Fed. Cir. Aug. 28, 2023), where it held that OTDP applied to patent term extensions generally. Cellect, however, did not involve ...
"Could we do it in a few days? Eh, let's stip it out by six weeks."AI-Generated
We've talked before about how, in the District of Delaware, the Court usually grants stipulated extensions of upcoming deadlines, as long as those deadlines don't impact the Court.
Today I noticed an order from last week that goes against that trend. In Mallinckrodt Pharmaceuticals Ireland Ltd. v. Airgas Therapeutics LLC, C.A. No. 22-1648-RGA-LDH (D. Del.), before Judge Andrews, the parties filed a straightforward stipulation extending the deadline to file redacted versions of a number of pleadings:
IT IS HEREBY STIPULATED AND AGREED, by and between the parties hereto, and subject to the approval of the Court that the time for …
Many years ago, before Andrew made me put a picture in EVERY TURTLE-CURSED POST, I wrote a post about the very easiest Daubert motion to win. As a brief refresher, it turned out to be a motion to exclude a damages experts reliance on a jury verdict point as the starting point for a hypothetical negotiation. Both Judge Andrews and Judge Burke were particularly firm on the issue, coming just short of setting a bright-line rule:
A jury verdict does not represent evidence from which a hypothetical negotiation can be reliably determined. A jury verdict represents the considered judgment of twelve (or maybe fewer) random non-experts as to what a hypothetical negotiation would have resulted in for the patent(s) …
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