A Blog About Intellectual Property Litigation and the District of Delaware


Here Is the New Nominee for the District of Delaware: Gregory B. Williams

Emily S. DiBenedetto, April 18, 2022
Congestion Vacant Judgship

Into Focus

Change is afoot in the District of Delaware! Last week, President Biden nominated Gregory B. Williams, a partner in Fox Rothschild LLP’s Wilmington office, to fill Judge Stark’s vacancy in the District of Delaware. (See Judge Stark’s confirmation history here.)

About the Nominee

The White House provided a helpful and succinct summary of Mr. Williams' qualifications: “Gregory B. Williams is a partner in the Wilmington, DE office of Fox Rothschild LLP. He joined the firm in 1995 as an associate and was elevated to partner in 2003. He has served as special master in complex civil cases for the District of Delaware since 2020. From 1986 to 1992, Mr. Williams served in the U.S. Army Reserve. He received his …

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Judge Connolly Issues New Standing Orders, Including Requirement to Disclose Litigation Funding

Andrew E. Russell, April 18, 2022
Standing ANDA

Standing Stones
Andreas Brunn, Unsplash

Today, Judge Connolly issued four new standing orders. These orders include:

  1. A requirement to disclose third-party litigation funding arrangements on the docket;
  2. A requirement in diversity cases to disclose the name and citizenship of every individual and corporation with a direct or indirect interest in every party;
  3. An order expanding disclosure requirements under Federal Rule of Civil Procedure 7.1 for non-governmental joint ventures, LLCs, partnerships, and LLPs;
  4. A requirement for the defendant in ANDA cases where there was a Paragraph IV certification to produce the ANDA when responding to the complaint;

The above are numbered only for reference below.

Each of these orders explicitly applies only in Chief Judge Connolly cases.

Order 1: Litigation …

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Aaaaand . . . We’re Back!

Andrew E. Russell, April 18, 2022

Typical post-trial pile of unread e-mail
Typical post-trial pile of unread e-mail Andrew E. Russell, CC BY 2.0

We’re back! Our firm survived five trials over the course of three and a half weeks, including one week where we had a separate trial in front of each of the three sitting Article III judges in Delaware, simultaneously! We’ve also learned quite a lot about trial in front of visiting Judge Wolson.

There really was no time for blogging these last few weeks. As most of our readers know, going to trial in even just one case can keep you busy—especially if you’re acting as good Delaware counsel should, doing things like helping on the merits and strategy (or even taking witnesses), drafting motions and bench …

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Closed for Trial

Andrew E. Russell, March 26, 2022
Trial Litigation

This guy knows how to go to trial
This guy knows how to go to trial Henry Hustava

Just a blog service announcement: We'll be going on a bit of a blogging hiatus for the next week or two. Our firm handled a trial last week before Judge Andrews as local counsel, and we're set for three simultaneous trials this week before Judges Connolly, Andrews, and Noreika. Then we have yet another trial the week after, before visiting Judge Wolson.

If you're adding them up, that's five trials in three weeks as local counsel! So we're up to our necks in prep work, with about a dozen visiting co-counsel and staff using our offices as trial space, and we're going to have to slow down a bit on …

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Found in Translation

Nathan R. Hoeschen, March 24, 2022
Discovery Dispute

Translation Loading
RCA

Judge Fallon ruled on what is, as near as I can tell, a totally novel discovery dispute earlier this week.

The defendants in Chervon (HK) Limited v. One World Tech., Inc., C.A. No. 19-1293-VAC(!), were scheduled to depose several of plaintiffs witnesses and plaintiff learned -- its unclear how from the papers -- that defendant intended to use some previously untranslated Chinese documents as exhibits as exhibits. Plaintiffs' thus moved to compel the defendants to produce certified translations of these documents in advance of the depositions.

Judge Fallon denied the motion, noting that "the hardship in selecting all deposition exhibits well in advance of the deposition" needed to be "balanced . . . against the importance of maximizing …

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Here's What Has Changed in Judge Burke's New Form Scheduling Order

Andrew E. Russell, March 23, 2022
Concise Statement of Facts Case Narrowing

New
Nick Fewings, Unsplash

Yesterday, Magistrate Judge Burke released a new form scheduling order. There are redlines embedded below.

Here is a quick rundown of some of the changes in the patent scheduling order:

  • Added from Judge Andrews' scheduling order:
    • A requirement for plaintiffs to provide licenses and settlement agreements as part of their disclosures
    • A prompt in the scheduling order for the parties to consider a staged reduction of asserted claims and prior art, before and after claim construction (this comes up a lot)
  • Added from Judges Connolly, Noreika, and/or Hall's scheduling orders:
    • A requirement to include chart at the end listing the deadlines all together (convenient!)
    • A Concise Statement of Facts requirement for summary judgment
    • He …
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Last-Second Claim Construction Argument, Offered at Hearing, Saves Patent from § 101 Motion to Dismiss

Andrew E. Russell, March 22, 2022
MTD § 101

Plaintiff Trident Holdings, LLC at oral argument, pointing to a claim construction
Kedar Gadge, Unsplash

Having a legitimate claim construction dispute that would lead to subject matter eligibility is a great way to survive a § 101 motion. Ideally, obviously, that argument should be set forth in an answering brief. But an opinion yesterday describes how a patentee was able to avoid a negative result on its § 101 motion through claim construction arguments offered at oral argument:

[Plaintiff] Trident suggested for the first time at oral argument that the “optimization engine” and “adaptive scoring” limitations required construction before the Court decides eligibility. . . . That claim construction wasn’t expressly raised until the oral argument suggests that [Trident] may not have actually thought there was a claim construction issue …
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Always Leave the Court Enough Time Between SJ/Daubert Briefing and the Pretrial Conference

Andrew E. Russell, March 21, 2022
Stipulation KB

Caution Tape
Hiroshi Kimura, Unsplash

A reader helpfully flagged a stipulation denial by Judge Noreika last week (thank you!). The parties had a pretrial conference scheduled for July 18, 2022, and stipulated to move a number of deadlines, including for Daubert briefing. They moved the Daubert motion reply deadline from May 20, 2022 (52 days before the PTC) to June 10, 2022 (38 days before the PTC).

Judge Noreika denied the stipulation without comment. They smartly refiled, but without the Daubert deadline adjustment. This time it went through just fine, albeit with a comment stating that the Daubert deadlines were not moving:

SO ORDERED re 192 STIPULATION TO EXTEND TIME . . . IT IS FURTHER ORDERED that the Daubert motion/briefing schedule set by D.I. 134 shall NOT be extended ...
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Judge Stark Sworn In at Federal Circuit, Still Has Some Cases in Delaware

Andrew E. Russell, March 19, 2022
Congestion DED

Judge Stark's Swearing In Ceremony
U.S. Court of Appeals for the Federal Circuit

According to the Federal Circuit's website on Thursday, Judge Stark has been officially sworn in to the United States Court of Appeals for the Federal Circuit. According to their post, he was sworn in on the Lincoln Bible, held by his wife Beth Stark. Congratulations again to Judge Stark!

As we discussed on Thursday, the Court is still in the process of re-assigning Judge Stark's cases, with the majority so far going to other D. Del. Article III judges. Judge Stark still has a number of cases, including for example C.A. No. 19-01938-LPS, where he issued an order on Monday asking for briefing following a status report from the …

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Where Have All The Ca-a-a-ses Gone?

Nathan R. Hoeschen, March 17, 2022

Buffalo
Andrew E. Russell, CC BY 2.0

If you're invested enough in Delaware litigation to be reading this blog, you will be aware that Judge Stark is slated to leave us soon, and the district has set forth some guidance on what will happen to his cases when he departs. The Court has been reassigning Judge Stark's cases in batches since the beginning of February, and I have arbitrarily decided (because its Friday) that today we have enough data to do a quick rundown of where the cases are going.

As of today, the Court has transferred a mere 26 of Judge Stark's patent cases (counting related cases as a single case),whichhave been distributed as follows:

  • 7 - Judge Noreika …
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