A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: September 2020

Judge Noreika Rules that "Justice and Equity" Are Not Standalone Considerations in Collateral-Estoppel Analysis

Nathan R. Hoeschen, Sept. 17, 2020
Preclusion Estoppel

Plaintiff Estopped as Nearby District Moves to Overtake
Plaintiff Estopped as Nearby District Moves to Overtake Abed Ismail, Unsplash

Judge Noreika had a rare holding estopping a plaintiff from asserting the lone patent-in-suit patent due to collateral estoppel after trial.

The Court held a five-day bench trial in Biogen Int'l GmbH v. Amneal Pharms. LLC, C.A. No 17-823-MN in December 2019, dealing with a host on invalidity issues, including obviousness, enablement, and written description. The parties completed post-trial briefing in March 2020, and and a final opinion was thus expected in the not-too-distant future.

Unfortunately for Biogen, they also sued a different defendant, Mylan, in the Northern District of West Virginia on the same patent. That case went to trial in February 2020, on the sole …

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Judge Andrews Confirms Holding that Barred Full Prosecution History from Jury

Andrew E. Russell, Sept. 16, 2020
FRE 403 FRE

Judge Andrews yesterday issued his opinion denying all post-trial motions in TQ Delta, LLC v. 2Wire, Inc., C.A. No. 13-1835-RGA (D. Del.). The jury had returned a verdict of infringement and no invalidity after a trial in January 2020.

One part of the opinion stands out—Judge Andrews discusses his decision to preclude the defendant from discussing the full prosecution history of the patent before the jury as prejudicial under FRE 403:

I ruled that 2Wire could elicit testimony about what prior art was in front of the patent examiner, but that testimony about a “lengthy history of cancelling claims, adding claims, rejecting claims, [and] rejecting new claims” was inadmissible under Federal Rule of Evidence 403 because …
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Updated Zoom Link for Today's Xcoal Trial

Andrew E. Russell, Sept. 15, 2020
COVID-19

If these public Zoom links become more common, I'll likely stop posting about them (especially now that jury trials are set to resume). But for now, here is the Zoom link for today's trial in Xcoal, which restarted at 9 am this morning:

ORAL ORDER: The bench trial is available to the public by telephone, using dial in: 1-703-552-8058 and Conference Code: 944408, or by video, using the following link: https://trialgraphix.zoom.us/j/99196614906: Meeting ID: 991 9661 4906 Password: 166996. Audio or video reproduction of the proceeding is strictly prohibited. ORDERED by Judge Leonard P. Stark on 9/14/20. (ntl) (Entered: 09/14/2020)

As a reminder, this is the trial that was derailed immediately after opening statements by the receipt of an …

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Court: Document Production Two Months Before Trial Sufficient to Avoid Prejudice

Andrew E. Russell, Sept. 14, 2020
Motion to Strike Pennypack

In the holding below, Judge Burke found that, under Pennypack, producing documents just over two months before trial was sufficient to provide time for "Defendants to be able to appropriately respond to Plaintiffs' expert's related position."

This is a shorter timeline than typically comes up. For example, Judge Burke has previously struck late-produced material where there were six months remaining before trial, although in that case the other Pennypack factors also played a role.

The facts here were not terrible for defendants. The documents had been produced by individual defendants in a set of related cases. According to the plaintiff, the expert reports at issue used the documents from various defendants to respond to arguments from those defendants, although …

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Judge Fallon Posts Public YouTube Mirror for Tuesday Markman Hearing [Updated: Now Dial-In Only]

Andrew E. Russell, Sept. 14, 2020
Zoom COVID-19

Looks like Judge Fallon is trying out a new way of doing public hearings, with a YouTube mirror of a private Zoom teleconference at 10:00am ET on Tuesday 9/15:

ORAL ORDER- The Markman Hearing on 9/15/2020 will be a public hearing. The YouTube link for interested members of the public to observe the live Zoom session is https://www.youtube.com/watch?v=w-9WpLOvaLk&feature=youtu.be.

NexStep, Inc. v. Comcast Cable Communications, LLC, C.A. No. 19-1031-RGA-SRF (D. Del.).

The hearing is scheduled to last 3 hours and cover 6 terms.

To my knowledge, this is the first D. Del. hearing to post a public YouTube (rather than Zoom) link, at least in the IP space.

Honestly this sounds like a good way …

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Some Trials Voluntarily Delayed, But No Indication the Court Will Extend Jury Trial Ban (Yet)

Andrew E. Russell, Sept. 11, 2020
COVID-19

COVID-19
COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

The District of Delaware's current coronavirus-related standing order banning jury trials expires Tuesday, 9/15.

When it expires, the Court will allow jury trials under its Phase 2 guidelines, starting with only a single jury at a time, and prioritizing criminal cases.

So far there has been no indication that the Court will extend the ban, although the previous extension occurred on day the last order expired.

Upcoming trials were rescheduled in a total of five cases this week, but it looks like those were rescheduled at the parties' request (four of those cases were related to last weeks' delay in the Sprint action).

The most recent information I've seen from …

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The Open Source Community Is Not Defenseless Against Patent Trolls

Andrew E. Russell, Sept. 10, 2020
OSS § 101

I assume there is a troll in here somewhere
I assume there is a troll in here somewhere Jamie Street, Unsplash

As I mentioned earlier this week, I recently saw a fascinating article by James Bottomley relating a non-attorneys' view on patent trolls and a specific attack against GNOME, a well-known component of many open source Linux- and Unix-based operating systems.

The GNOME Foundation was sued in the N.D. Cal. by a Rothschild entity (a well-known NPE). The case involved what looks like a pretty typical NPE complaint, alleging infringement of a single patent. His article recounted his experiences and the settlement, and argues that the patent system is broken because of how hard it is to defend against these kinds of suits.

I wanted to …

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Fact Issues Fail to Hold Back Motions to Dismiss Under 101

Nathan R. Hoeschen, Sept. 10, 2020
§ 101

Judge Andrews issued two new decisions invalidating patents under § 101 on motions to dismiss. The patents at issue in B# On Demand LLC v. Spotify Technology SA, C.A. No. 19-2077-RGA, D.I. 24 (D. Del. Sept, 8, 2020) and Aegis 11 SA v. Belkin International, Inc., C.A. No. 19-1161-RGA, D.I. 24 (D. Del. Sept. 9, 2020) were the computer-centric sort that one might have expected to be invalidated at some point in the case, it was surprising to see them decided at a motion to dismiss stage—especially in light of Judge Connolly's decision earlier this week granting yet another motion to dismiss on 101 grounds.

Aren't § 101 Motions to Dismiss Supposed to Be …

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Judge Connolly Knocks Out Five Patents on Rule 12 Motion

Jeff Castellano, Sept. 8, 2020
FRCP 12(c) 12(c) Motion

On September 3, 2020, Judge Connolly invalidated five asserted patents as patent ineligible on a single Rule 12 motion. In Sensormatic Electronics, LLC v. Wyze Labs, Inc., C.A. No. 19-1543-CFC, Judge Connolly granted defendant's motion for judgment on the pleadings, invalidating five of seven asserted patents (two of the seven were no longer being asserted).

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