A Blog About Intellectual Property Litigation and the District of Delaware


Counting is Hard

Nathan R. Hoeschen, Nov. 22, 2022
Claim Narrowing

Crissy Jarvis, Unsplash

An interesting opinion from Judge Thynge last week on case narrowing, and in particular, how to count invalidity arguments.

The defendant in Targus International LLC v. Victorinox Swiss Army, Inc.., C.A. No.20-464-RGA-MPT (D. Del. Nov. 18, 2022), had agreed to reduce the number of prior art "arguments" to 5. In its expert reports, however, they had counted reference "A in view of B", as well as "B in view of A" as a single argument. This lead to the inclusion of (what plaintiff counted as) more than 5 arguments. Plaintiff then moved to strike the extraneous arguments and Judge Thynge agreed, holding:

In its letter brief, Defendant maintains that it "never labeled any reference …
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Now a Defendant in a Mavexar Case—Not a Plaintiff—Has Moved for a Protective Order

Andrew E. Russell, Nov. 21, 2022
Litigation Funding Standing Orders

"Lamplight" isn't the worst name for a patent assertion entity. Riley Bourdon, Unsplash

Today brought yet another twist in the ongoing Mavexar saga. In one of the cases, a defendant—not the plaintiff—moved unopposed for a protective order to prevent the Mavexar-related LLC from producing the documents that the defendant sent to it (and that, presumably, the Mavexar-related LLC may have sent to Mavexar itself).

Specifically, the defendant moved for a protective order to "prevent the public filing of three categories of information that ABB expects to be provided by Plaintiff and its counsel in response to the Court’s Memorandum Order," including (1) documents related to sales and royalty rates, (2) communications related to the terms of the settlement agreement, and (3) the agreement itself.

As to those three categories, the defendant asked the Court to issue a protective order that protects the info from disclosure in both filings and in future hearings or ...

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In Response to Mandamus Petition, Federal Circuit Stays Mavexar Order

Andrew E. Russell, Nov. 18, 2022
Litigation Funding Standing Orders

Stop
Markus Spiske, Unsplash

These Mavexar-related cases are developing so fast, we can hardly keep up!

We've talked about how Chief Judge Connolly issued an order directing certain of the Mavexar-related entities to produce documents, including materials related to their communications with Mavexar. We also discussed the Nimitz entities' petition for a writ of mandamus to stop enforcement of the order and to stop the Court's "judicial inquisition."

Yesterday, the Federal Circuit responded and stayed the order:

IT IS ORDERED THAT:
Defendants CNET Media, Inc., Bloomberg L.P.; BuzzFeed, Inc.; and Imagine Learning, Inc. are directed to respond to the petition no later than November 30, 2022, whether defendants fully defend, partly defend, or decline to defend the challenged order. …
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Signs of Further Restrictions on Redactions

Nathan R. Hoeschen, Nov. 17, 2022
Redactions

AI-Generated, displayed with permission

Judge Andrews' policy of rejecting filings that redact exhibits in their entirety is well known to our readers. Judge Andrews has been persistent in the practice over the past year or so, issuing quite a few orders substantively identical to the below:

The redacted filings (D.I. 40 ) is REJECTED because parts of it are redacted in its entirety. Absent a compelling reason, supported by a statement under oath by a party, redactions in their entirety are impermissible; redactions must be done so as to redact the least possible amount of the materials submitted. Failure to make a good faith attempt at such redactions may result in sanctions, the most common of which would be simply …
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Mavexar Entity Petitions for Writ of Mandamus to Stop Court's "Judicial Inquisition"

Andrew E. Russell, Nov. 16, 2022
Litigation Funding Standing Orders

Nimitz-Class Aircraft Carrier
Nimitz-Class Aircraft Carrier Unknown

Yesterday, Nimitz Technologies LLC, one of the entities involved in the recent Mavexar hearings, filed a petition for a writ of mandamus with the Federal Circuit to "review and reverse" the Court's most recent memorandum order in those cases, and to "direct[] the district court to terminate its judicial inquisition of the Petitioner."

If you recall from our post last week, the Court issued an order in three of the Mavexar-related cases directing Nimitz and two other plaintiffs to disclose a broad range of communications and documents, including things like retention agreements, bank account statements, and communications between the plaintiffs or their principals or attorneys and Mavexar.

Nimitz argues that the documents and communications …

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Judge Andrews Grants Motions in Limine Regarding Prior Proceedings and Total Revenues—Here's Why These Are Helpful Motions

Andrew E. Russell, Nov. 16, 2022
Trial Practice Trial Procedure

"Sure our damages figure sounds big, but look how big this other number is!" AI-Generated, displayed with permission

This week, Judge Andrews issued an order on the six motions in limine that the parties filed in Sprint Communications Company, L.P. v. Mediacom Communications Corp., C.A. No. 17-1736-RGA (D. Del. Nov. 14, 2022).

The order is short and to the point, and doesn't identify what the MILs relate to. But if the docket shows that there are at least two MILs here worth mentioning, if only because they come up so often.

Prior Proceedings

The defendant first moved to exclude the outcomes of multiple prior cases, as well as pending cases against co-defendants. Plaintiff responded that the prior …

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Nobody Lives In Texas Either

Nathan R. Hoeschen, Nov. 15, 2022
Transfer

#Texas Troll
AI-Generated, displayed with permission

My wife runs a stationery business headquartered right here in the . . . state of Delaware. When she filled out the form to set up her LLC, she listed our address as the headquarters and herself as the person to be served with process.

The filing was rejected. When she called to figure out why, the good people at the division of corporations explained that they constantly have people trying to incorporate in Delaware (for reasons all parties involved would be hard-pressed to explain), but who don't want to pay the corporation trust company to act as a registered agent. So they list a P.O. box or just a random address and call it a …

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Two Thirds of Latest Round of Cases Consent to Magistrate Judge Jurisdiction Rather Than Getting an Unknown Visiting Judge

Andrew E. Russell, Nov. 14, 2022
Visiting Judges Congestion

"If we don't consent, which visiting judge do you think we'll get?" Hush Naidoo Jade Photography, Unsplash

We've talked before about Chief Judge Connolly's orders that allow parties to choose to either consent to a specific magistrate judge or to have the case assigned to a visiting judge.

Last month, the Court issued those orders in six patent cases. All of the orders followed the same pattern as last time, giving the choice between a specific magistrate judge or an unknown visiting judge:

ORAL ORDER: It is HEREBY ORDERED that on or before November 1, 2022, 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 all the parties do not consent to a referral of this action to a Magistrate Judge. The letter should not indicate which party or parties did not consent. If all the parties consent, the case will be referred to Magistrate Judge Burke. Because of the Court's caseload, if the parties do not consent, the Court intends to assign the case to a visiting judge from another district. Ordered by Judge Colm F. Connolly on 10/18/2022.

These orders started last year, before Judge Stark's departure for the Federal Circuit. It makes sense that the Court is sticking with ...

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A New Visiting Judge for D. Del. Patent Cases: Senior United States District Judge Joel H. Slomsky of the Eastern District of PA

Andrew E. Russell, Nov. 14, 2022
Visiting Judges Congestion

Philadelphia
Dan Mall, Unsplash

I noticed a new visiting judge here in the District of Delaware this month: Senior United States District Judge Joel H. Slomsky of the Eastern District of PA.

To my knowledge, Judge Slomsky has not previously served as a visiting judge in the District of Delaware, other than signing one stipulation on an emergency basis back in 2010. It looks like Judge Slomsky took on four patent cases this month.

Welcome, Judge Slomsky!

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Chief Judge Connolly Transfers Case Citing Court Congestion

Nathan R. Hoeschen, Nov. 13, 2022
Transfer

We're sad to see it go, but honestly the case is probably happier in Florida
We're sad to see it go, but honestly the case is probably happier in Florida Joël de Vriend, Unsplash

A few weeks ago, we discussed a case where Judge Noreika transferred a trademark case under 1404, citing court congestion. This week, Chief Judge Connolly made a similar move, transferring a contract claim to Florida based largely on the relative congestion of the two courts.

The plaintiff in Arthrex, Inc. v. Nat'l Union Fire Insurance Co. of Pittsburgh, PA , C.A. No. 22-465 (D. Del. Nov. 8, 2022), was a Delaware entity, headquartered elsewhere and none of the defendants had any particular Delaware connection. As is often the case in a patent action, the facts of the dispute …

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