A Blog About Intellectual Property Litigation and the District of Delaware


WDTX Begins Random Patent Case Assignments: Will More Cases Be Coming to Delaware?

Andrew E. Russell, July 26, 2022
WDTX Congestion

Looks like the sun is setting on Waco, TX
Looks like the sun is setting on Waco, TX Jed Owen, Unsplash

We're a day late on this, but it could be major news for Delaware patent litigators: the Western District of Texas is ending its practice of sending all patent cases filed in Waco to Judge Alan Albright.

Previously, all cases filed in Waco, TX were assigned to Judge Albright, a former patent litigator. He has favorable rules for resolving cases quickly and putting pressure on accused infringers, although I'm not sure that they are quite as tilted towards patentees as Law360 makes them out to be.

According to Law360, Judge Albright received 23% of all patent lawsuits in 2021. That's a lot!

We'll have to see …

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Mistrial in a Patent Action

Andrew E. Russell, July 26, 2022

Mess Cup on Road
Eastman Childs, Unsplash

I heard that last week there was a mistrial in a patent action here in the District of Delaware. Looking at the dockets, it looks like it was one of the very-long-running TQ Delta cases:

  • TQ Delta LLC v. 2Wire Inc., C.A. No. 13-1835-RGA (D. Del.)

The docket confirms that the Court declared a mistrial on day 2 of the trial:

Minute Entry for proceedings held before Judge Richard G. Andrews - Jury Trial day 2 held on 7/19/2022. Local counsel present for Plaintiff: R. Piergiovanni. Local counsel present for Defendant: J. Barillare. The Court declared a MISTRIAL. Trial will be rescheduled for a date TBD. (Court Reporter Heather Triozzi.) (lak) (Entered: …
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District of Delaware's 2022 Annual Report: Updates on Judge Williams' Timing, Court Caseload

Andrew E. Russell, July 25, 2022
Annual Report Congestion

Annual Report 2021
U.S. District Court

We wrote recently to report about the District of Delaware FBA's annual meeting, where the Court updated local practitioners about the state of the Court and upcoming changes. We promised an update when the Court issues its 2022 Annual Report.

Well, here is that update! The report is attached below in full. Some highlights include:

  • The report notes that the last five judges nominated to the District of Delaware took their oaths of office and entered duty within two weeks of confirmation by the Senate. The Senate confirmed Judge Williams on July 20, 2022. Doing the math, if history repeats itself, we should see Judge Williams start by Wednesday August 3, 2022. That's good news …
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Judge Kennelly Gives PTAB Claim Constructions Little Weight: "Not All intrinsic Evidence Is Created Equal"

Andrew E. Russell, July 22, 2022
IPR Claim Construction

Chicago, Illinois
Chicago, Illinois Pedro Lastra, Unsplash

In an opinion today, visiting Judge Kennelly (N.D. Ill.) rejected the idea that an accused infringer could bring an IPR, receive a claim construction in that IPR, and then argue that that construction is "intrinsic evidence" that, by itself, merits adopting the construction in the district court case.

In XMTT, Inc. v. Intel Corp., C.A. No. 18-1810-MFK, D.I. 293 (D. Del. July 22, 2022), the PTAB had proposed and applied its own constructions for the claims, and accused infringer Intel ultimately lost the IPR. Intel then appealed, and the Federal Circuit affirmed without reaching the merits of the claim constructions.

While the IPR was pending, Intel argued that the …

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When Does A Case Really Begin

Nathan R. Hoeschen, July 21, 2022
Motion to Dismiss Scheduling Order

setyaki-irham-tfdff8Poebw-unsplash
Setyaki Irham, Unsplash

I was talking to my fellow blogger Andrew the other day, when we had the following exchange:

Andrew: Greetings treasured friend and colleague! Have you noticed that Judge Andrews hasn't been requiring parties to submit scheduling orders whilst motions to dismiss are pending?

Me: Truly?

Andrew: Indubitably, I would not jest on such a matter! I have, in fact, just confirmed it by reviewing his 10 most recent orders on motions to dismiss with my own eyes.

Me: Well I cannot gainsay such thorough research. But what of the others? Do Judges Noreika and Connolly decide motions to dismiss before requiring the parties to submit a proposed schedule?

Andrew: I'm certain I don't know, but certainly …

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Judge Andrews Requires Plaintiff to Propose Construction for "Plain Meaning" Term the Day Before Markman Hearing

Andrew E. Russell, July 20, 2022
Plain Meaning Claim Construction

Analog Clock
None, Ocean Ng, Unsplash

One of our busiest posts on the blog is What Is "Plain and Ordinary Meaning," Anyway? And Why Do Plaintiffs Want It? This has been a recurring issue for years. Sometimes the Court is OK with a plain meaning construction, but sometimes the it is decidedly not.

Judge Andrews issued an order today for a forthcoming Markman hearing, set for 9:00 am tomorrow, directing plaintiff to propose a construction for one of its "plain meaning" terms by 8:00 pm this evening:

ORAL ORDER: The time for argument at the Markman hearing is reduced to thirty minutes per side. . . . As to disputed term D, the Court thinks construction is …
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Don't Short-Change the Representative Claims Argument in a § 101 Motion—Part II

Andrew E. Russell, July 19, 2022
Representative Claim § 101

Legos make for good representative claim analogies.
Hello I'm Nik, Unsplash

We've talk before about how accused infringers so often give short shrift to the representative claims issue in § 101 briefing, and how it deserves a lot of attention if you want to prevail on a § 101 motion to dismiss.

Judge Burke issued an R&R yesterday, following his recent § 101 day, invalidating one claim of an asserted patent—but declining to hold 27 other claims valid, citing the accused infringer's poor representative claims argument:

I will note that I [have] been reviewing Section 101 motions like these for most of my entire 11 years as a judge[;] during that time, I have resolved many, many such motions. But I cannot recall ever having seen …
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Even an Admitted Direct Competitor Relationship Is Not Enough, by Itself, for a Permanent Injunction

Andrew E. Russell, July 18, 2022
Damages Lost Profits

I guarantee that's the cleanest this car seat will ever look.
I guarantee that's the cleanest this car seat will ever look. Erik Mclean, Unsplash

Judge Andrews issued an opinion earlier this month regarding a permanent injunction in Wonderland Switzerland AG v. Evenflo Company, Inc., C.A. No. 18-1990-RGA (D. Del. July 5, 2022). Plaintiff in that case prevailed at a four-day bench trial in 2021, with a damages award of $343,680 (they sought $845,528, according to the draft PTO).

Plaintiff now moved for a preliminary injunction. The Court had held after trial, as part of its Georgia Pacific reasonable royalty analysis, that the parties were "direct competitors":

First, I previously held that "the parties are direct competitors in the industry of the patented invention." . . . Specifically, the parties do not dispute that Graco and Defendant directly compete in the car seat market. (See D.I. 195 at 2 (Defendant agreeing, " There is no dispute that Evenflo directly competes with Graco, Wonderland's customer in a large market for all-in-one car seats.")). Additionally, Plaintiff is the exclusive manufacturer of car seats sold by Graco in the United States. . . . Thus, if Graco loses a sale of a car seat, Plaintiff also loses a sale.

Judge Andrews rejected an apparent attempt to backtrack and argue that the parties were not competitors, in part because ...

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