Under the Court's "Policy on the Electronic Availability of Transcripts of Court Proceedings," you need to file a motion to request redactions of anything other than specifically listed personally identifiable information (e.g., social security numbers, names of minor children, etc.).
We noted in that post that the deadline for filing such a motion wasn't clear but that it was "definitely a good idea" to move before the release of the transcript restriction.
Just today, however, Judge Connolly issued an order suggesting …
Judge Andrews issued an interesting opinion last week, in another case that breaks new ground on reconsideration. The (extremely) abridged and expurgated procedural history in MirTech, Inc. et al v. AgroFresh, Inc., C.A. No. 20-1170-RGA (D. Del. June 14, 2023) (Mem. Op.) is as follows:
Agrofresh moved for summary judgment on one of its counterclaims alleging breach of a settlement agreement requiring the plaintiffs to assign them several foreign patent applications
The plaintiffs responded by arguing that Agrofresh had actually dropped most of these claims. In support, they cited an RFA objection where Agrofresh argued that "[n]o claim or defense at issue in this lawsuit . . . relates to [the allegedly dropped applications]."
At a hearing today, Judge Kennelly set forth his preferences on how parties files documents in CM/ECF. He explained that he deals with all filings electronically, and large exhibits as permitted by the Delaware CM/ECF system interfere with his work flow.
He threatened to deny motions going forward (at least in that case) if parties combine exhibits in that way, specifically pointing to the following docket item:
As you can see in the highlight, the party combined multiple exhibits into sub-filings, which makes it difficult and slow to download, and impossible to download individual exhibits.
Judge Kennelly prefers that parties do it this way:
Visiting Judge Wolson has expressed similar concerns for similar reasons, and his procedures go a step …
We're really starting to run out of good, free pictures of sand bags for these posts.Karen Barrett, Unsplash
At this point, all of the D. Del. judges have adopted a joint claim construction brief procedure invented by Judge Andrews, where the parties serve opening, answering, reply, and surreply briefs, and then file a single combined joint claim construction brief that presents the arguments term-by-term. This means that the parties and the Court can work from a final, combined joint brief where all of the arguments match up.
This is a great procedure and everyone seems to like it. Certain questions tend to come up about it, though.
Common Questions on the Joint Claim Construction Brief
I've read it four times now, and I'm pretty sure the title of this post is correct. But for those who want to follow the byzantine history of the recently (and one must imagine finally) denied motion for reconsideration in PACT XPP Schweiz AG v. Intel Corporation, C.A. No. 19-1006-JDW (D. Del. June 9, 2023), the current state of play is:
March 24 - the Court Grants summary judgment of noninfringement of one of the patents in suit
March 29 - the plaintiff moves for reconsideration
April 17 - The Court denies the motion for reconsideration
May 10 - as part of a larger brief, Plaintiff requests leave to file a second motion for reconsideration
"Sure, I had my LLC sue a bunch of people in Delaware, but I didn't think the Court would actually make me GO there."Andrew Russell, CC BY 2.0
I guess our post about the Mavexar hearing last week was remiss in failing to talk about the "mansplaining brief." I've had a couple of people ask me about it. Here is the background and some quick thoughts.
Chief Judge Connolly Orders Mavexar-LLC's Sole Member to Testify In Person
The short version of the leadup: Mavexar is an entity that creates LLCs to assert patents against tech companies for quick settlements, often in Delaware. The LLCs take all of the risk, and Mavexar keeps 90-95% of the profits while hiding its …
Over the last couple weeks, I've been tasked with going through the pile of resumes the firm received for various OCI's. Presented with a spreadsheet and 3,000 page pdf of resumes and related ephemera, I diligently set to work ranking the applicants with helpful notes for a second round of review.
At the start of the day, this usually looked something like:
Tier 1, obviously read Plain English For Lawyers and had good grasp of more difficult bluebooking rules, vacationed in Rehoboth as a youth, Likes crabs.
Inevitably, though, as the day wore on, my blood sugar would slowly sink until they looked more like:
Tier 1000, name rhymes with fart, hard pass
This was usually my cue to stop and revise my last couple entries the next day.
A Tale of Rising Spirits
During law school my wife and I would frequently kill a couple hours on a weekend going to tastings at the 100 or so wineries around Ithaca that ranged from "pretty good" to "proof that karma is real and that you were a mosquito in a past life."
One of the rules of a tasting trip is to spend your money fast and early. The farther into the trip you get, the looser the standards. We forgot this rule one summer—returning for a visit after several years—and set out for a 10 winery tour with high spirits.
At the 8th winery, I smelled my glass, thought for a moment, and passed it to my wife.
"what does this smell like to you?"
She sniffed and grimaced, responding, "cat pee?"
"Exactly," I said. "It's not bad otherwise though."
We bought a case, which sits in my basement to this day "aging."
I bring this up not (only) to pad the post, but instead to ask if either phenomena can be observed in the Court. To put a finer point on it—is there some correlation between how many times a given judge has decided a motion, and how likely they are to grant it?
I don't ask this question in a vacuum. The Court's recent round of referrals to visiting judges have caused litigants to consider whether they might be better off with a judge sitting in one of the busiest patent courts in the nation, or a visiting judge with a less extensive track record in patent matters (generally speaking, as you'll see below several of the visiting judges have a huge number of prior patent cases). Naturally, there is some value in having more data points on a judge regardless of any substantive effect, but one wonders: am I better off posing my motion to a judge who's seen the like 1,000 times, or 10?
The methodology here was simple. Pick a fairly common issue (I chose 101 motions) and chart ...
The Court held a lengthy hearing in the Backertop cases today. These are Mavexar-related actions and, if you recall, they involve a Mavexar attorney and his wife, who he appointed as the sole member of a Mavexar patent assertion entity.
How a Patent Assertion Entity is Born
Some of the Court's questions focused on exactly what Mavexar does, and confirmed that they operate basically as set out in the earlierhearings.
Here, from the lawyer's perspective, Mavexar attorneys reached out and said that Mavexar wanted to start several litigation campaigns, and asked whether the attorney was interested. They said that they would figure out what entity would actually assert the patents later.
Over the last two weeks, Chief Judge Connolly issued orders in about 15 different groups of cases offering the choice between consenting to magistrate judges Burke (in some cases) or Fallon (in other cases), or being referred to a visiting judge:
ORAL ORDER: It is HEREBY ORDERED that on or before June 13, 2023, 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 …
In almost every case I have as a defendant, there's a moment around claim construction when I'm just sure I've got the plaintiff dead to rights. Under one construction, there's no infringement—under the other, the patent's invalid. I've just gotta turn the crank on the vise until those conniving jerks pop.
I had a different picture here before but it was . . . pretty darkAI-Generated, displayed with permission
More often than not, however, this insoluble dilemma dissolves and I'm left cranking air.
It was thus with noticeable relish that I read Judge Bataillon's post-trial opinion in CR Bard Inc. v. AngioDynamics Inc. C.A. No. 1-15-218-JFB-SRF (D. Del. June 1, 2023)—where this spring was finally sprung.
The trap was—weirdly—in the term "suitable." The patents claimed a method for identifying a medical injection port as one of those "suitable" for high pressure applications such as CT scans (as well as apparatuses for doing the same). Apparently, the wrong sort of ports will explode if you use them for CT scans, so it's important for the doctor to know which kind you have.
The issue that came to the fore at trial was whether a "suitable" port was one that was ...
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
