We lawyers move things around all the time. Some due date or another falls on a vacation, an expert gets sick, a bunch of files won't load -- a thousand different minor catastrophes can occur. In Delaware, the result is almost invariably a stipulation to move the relevant dates.
WHEREAS, on the first day the waters turned to blood;AI-Generated, displayed with permission
Typically for little interim deadlines, the Court will grant the stipulation as a matter of course. Deadlines a little closer to trial are a bit trickier. Judge Connolly, for instance, notes in his form scheduling order that "Should the parties later stipulate or otherwise request to have the [SJ and Daubert] reply brief deadline extended, the parties …
Discovery agreements are a powerful tool. If you promise to produce to do or not do something during discovery, the Court will typically enforce that:
Litigating parties, represented by able patent counsel, are expected to uphold the agreements they make during a case, and the Court should ordinarily (absent extreme circumstances not present there) enforce such agreements.
The Nielsen Company (US), LLC v. TVision Insights, Inc., C.A. No. 22-057-CJB, D.I. 177 (D. Del. Mar. 8, 2024).
What are the kind of "extreme circumstances" that warrant not enforcing a discovery agreement? We got a hint of that last week in In re: Entresto (Sacubitril/Valsartan) Patent Litigation, C.A. No. 20-2930-RGA, D.I. 1683 (Dec. 5, 2024).
This train don't stop until the close of fact discovery (... unless the Court stops it)Jed Dela Cruz, Unsplash
The Court issued an oral order in airSlate, Inc. v. Inkit, Inc., C.A. No. 23-1307-RGA-SRF (D. Del.) yesterday, and it's a good reminder of a general rule that frequent D. Del. practitioners already know: once discovery starts, it generally proceeds even while a Rule 12 motion is pending.
The Court's order yesterday described how the defendant in airSlate had objected to producing its source code solely on the basis that a Rule 12 motion for judgment on the pleadings was pending:
Defendant agreed to produce source code in its response to Request for Production …
Willfulness is something of a bête noir in patent law. By any objective measure, it's all but irrelevant to damages. Although 284 technically allows for up to treble damages, in practice the odds of any enhancement, even if the jury finds that infringement was willful, are no better than 10-20%.
I made this image to go with a whole post I wrote before realizing Andrew had already done the opinion yesterday. It ha snothing to do with today's post but do try and guess how this was going to work into a truly killer opening anecdoteAI-Generated, displayed with permission
But of course, this is not the whole story. The prevailing theory is that it is to plaintiffs' advantage to present a willfulness case in order to cast the defendant as the conniving villain rather than merely a competing manufacturer of dryer sheets or what have you. If nothing else, it makes for a more compelling narrative. And so, the parties will often devote significant resources to keep this objectively marginal issue in or out of the case.
Should all defendant's efforts to slay the issue fail, the last line of defense is typically a motion to bifurcate the issue for trial. This used to be fairly common in the District, with Judge Robinson in particular being a famous proponent of bifurcating damages and willfulness, but it's employed less frequently in recent years.
Judge Andrews issued an interesting opinion on opposing summary judgment motions yesterday in Takeda Pharmaceuticals U.S.A., Inc. v. Mylan Pharmaceuticals Inc., C.A. No. 19-2216-RGA (D. Del.).
The parties settled a patent infringement suit years ago in a way that permitted the defendant to nonetheless launch its drug product if the patent claims were asserted against a third party and found invalid or not infringed.
Some of the claims were asserted against a third party and held invalid or not infringed, and the defendant launched. The plaintiff disagreed that this permitted launch. It sued the defendant for breach of contract and, critically, for patent infringement.
Plaintiffs in the patent game tend to treat prior art references like particular unwelcome guests. There is an obvious level of affront when they arrive, tempered only by what politeness can be mustered. Once they are in the door, there are constant references to how crowded it is, how little air, how maybe we should just call it a night even though its just so much fun to see everyone.
(Eds. Note -- can you tell I'm from the midwest? I was going over this metaphor with one of the many New Yorker's I know and they seemed not to get the dynamic).
Once you finally cajole them our of the house, packed with leftovers and other bribes, it …
Some home-cooked stuffing. Apparently the photo in our Thanksgiving post was uncooked stuffing.Andrew E. Russell, displayed with permission
We're back! I hope you all had a great Thanksgiving. As we'd hoped, the Court issued some interesting decisions last week, including a denial of a motion to strike in Lindis Biotech, GmbH v. Amgen, Inc., C.A. No. 22-35-GBW (D. Del. Nov. 26, 2024).
In that case, the parties had agreed to a case narrowing schedule that required the accused infringer to cut back to 6 prior art references per patent by 14 days before the pretrial order, not including references used to show the state of the art, the knowledge of one skilled in the art, …
Delicious Thanksgiving food made by local attorney Lauren E.M. Russell (who is also the author's wife)Andrew E. Russell
Happy Thanksgiving! Don't forget that both Thursday and Friday of this week are court holidays.
There haven't been a lot of Court orders and opinions in the last week or so, and we've been running a bit short on topics (we're always open to suggestions). Now seems like a good time for a blog break. See you next week!
Both Chief Judge Connolly and Judge Williams require parties to rank their summary judgment motions. This is an effort to deter meritless summary judgment motions. Upon denying a higher-ranked motion, the Court will automatically deny lower-ranked motions as well.
In other words: You had better be careful when ranking your summary judgment motions. But it can be tricky! Do you put the one with the highest chance of success first, even if it's on an issue you don't care as much about? Or do you rank the tougher SJ motion first because it addresses a critical issue first, to ensure that the Court will at least address it?
Judge Burke's decision in CosmoKey Solutions GmbH & Co. KG v. Duo Security, Inc., C.A. No. 18-1477-JLH-CJB (D. Del. Nov. 15, 2024) (Oral Order), deals with a stipulation that encompassed more than intended.
The case began life under the watchful gaze of Chief Judge Connolly. Like all patent cases assigned to him at the time, the scheduling order …
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