A Blog About Intellectual Property Litigation and the District of Delaware


Penny
Adam Nir, Unsplash

As we've discussed, parties sometimes treat the deadline for "substantial completion of document production" as a soft deadline, doing a "rolling production" afterwards that can be quite voluminous. An opinion from Judge Bibas today shows the risk of not taking that deadline seriously.

In the opinion, Judge Bibas excluded over 60,000 rows of spreadsheet sales data that were produced by a defendant in an Fair Labor Standards Act class action, after the defendant waited until six months after the deadline for substantial completion of document production to produce the data.

As usual for Judge Bibas, his opinion is an interesting read and a bit different from what we typically see from other judges in Delaware. …

We've written about the strong presumption of public access in the Third Circuit, which has led the D. Del. judges to push back on sealing requests in recent years. Judges frequently deny requests to seal judicial records (like hearing transcripts and opinions), and some have taken a more active role in monitoring sealed filings on their dockets.

On Tuesday, for example, Magistrate Judge Fallon ordered a party to provide "a factually detailed explanation" for why the exhibits to the redacted version of a sealed letter brief met the Third Circuit standard for sealing:

ORAL ORDER TO SHOW CAUSE re: D.I. 161 : On or before close of business on July 14, 2021, Defendants shall submit a letter …

I know this is not a water heater but it's surprisingly hard to find a public domain picture of one
Sigmund, Unsplash

Judge Stark issued an interesting opinion last week, deciding not to grant a permanent injunction. Although these requests are denied more often than not, this particular opinion was interesting because it rested, in part, on the plaintiff's conduct in failing to pursue third-party (alleged) infringers.

When it came time to rule on the permanent injunction issue, the Court had already determined that the parties in AO Smith Corp. v. Bradford White Corp., C.A. No. 18-412-LPS, D.I. 244 (D. Del. July 9, 2021) were direct competitors. AO Smith, D.I. 220 at 13 (D. Del Mar. 31, 2020). The relevant market also had two other substantial players not involved in the suit.

Unfortunately for the …

Fire. I couldn't find an image of raining brimstone.
Fire. I couldn't find an image of raining brimstone. Ricardo Gomez Angel, Unsplash

On Monday, Judge Noreika sanctioned a patentee plaintiff for not following the protective order regarding source code.

Here is what the plaintiff did:

Plaintiff violated the Protective Order at least six times over a period of almost one year by: 1) creating an electronic copy of the source code on July 6, 2020; 2) sending that electronic copy to a vendor that had not signed the Acknowledgement and Agreement to Be Bound by Stipulated Protective Order (which actually violated two provisions of the Protective Order); 3) failing to maintain a log of all copies; 4) storing an electronic and apparently unencrypted copy of the source code …

Ridesharing
Brecht Denil, Unsplash

Magistrate Judge Hall issued a § 101 R&R today in Rideshare Displays, Inc. v. Lyft, Inc., C.A. No. 20-1629-RGA-JLH (D. Del.), recommending denial of defendant Lyft's motion to dismiss based on § 101.

The Court found that the patent was not directed to an abstract idea—though it noted that it was a close call—and that, regardless, the invention contained an inventive concept under Step 2 of Alice.

We've all read about dozens (or more) of § 101 opinions over the last few years, but here are a few points of interest from Judge Hall's opinion:

  • Judge Hall closely examined the representativeness of the alleged representative claim, and rejected it as unrepresentative. Choose …

Judge Stark issued a claim construction ruling in a large multi-district ANDA case last week, touching on interesting questions regarding the nature of intrinsic evidence and the impact of disclaimers on child applications.

The parties to In re Entresto (SacubitriWalsartan) Patent Litigation, C.A. No. 20-2930-LPS presented the Court with just a few issues for resolution.

First, the Court considered whether independent claims of two of the patents-in-suit directed to administration of a "combination" of active ingredients should be limited to administering those ingredients as "two separate components“…

Time
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Judge Noreika issued an interesting order last week that allows us to pinpoint precisely how much time she requires to consider Daubert motions.

Naturally, we already had some insight into this issue from the Judge's form scheduling orders. For non-ANDA cases (i.e. cases where the parties may file summary judgment motions), Daubert motions are due at the same time as SJ motions -- at least 4 months before the pretrial conference. See Form Scheduling Order [Patent, Non-ANDA], ¶ 8(f)(iii) (D. Del. Apr. 5, 2021) (Noreika, J.).

The form scheduling order for ANDA cases, on the other hand, gives the parties considerably more leeway, simply requiring that any Daubert motion be brought …

Scissors
Markus Winkler, Unsplash

A few months ago, we wrote about claim narrowing in patent cases, noting that Delaware judges will often set additional limits when a case reaches trial. Because this typically comes up during the pretrial conference, there is often no written record on the docket.

Last Thursday, however, Chief Judge Connolly issued a rare, written order requiring the parties to narrow their claims and defenses before trial:

ORAL ORDER: Per today's call, it is HEREBY ORDERED that the pretrial conference will be held on July 27, 2021, and the trial will be held on August 2, 2021. Plaintiff shall identify for Defendant no later than 5:00 p.m. on July 7, 2021 no more than two patents and …

Expert witnesses testifying in federal court are required to provide an expert report under Rule 26(a)(2). Although Rule 26 sets forth some requirements for the content of the report, it does not directly address how the report should be prepared, and in particular how much input the expert (as opposed to the party that has retained the expert, or the party's counsel) should have in preparing the report.

Some experts insist on writing their report in its entirety, while others rely heavily on counsel during the drafting and revising process. Too much reliance on others, however, can lead to a motion to exclude for violation of Rule 26's mandate that the report setting forth the expert's opinions be “prepared and signed by the witness." Judge Andrews recently resolved such a motion in TQ Delta, LLC v. 2Wire, Inc., C.A. No. 13-1835-RGA, finding that while the plaintiff's expert had contradicted some of the reports from his report during deposition, that did not justify...