A Blog About Intellectual Property Litigation and the District of Delaware

Judge Stark recently adopted Judge Burke's recommendation that the Court deny a motion for summary judgment of no willful infringement, despite the defendant's objection that the key piece of authority underlying Judge Burke's decision issued after the summary judgment motion was filed.

Judge Burke relied on the Federal Circuit's 2020 Eko Brands decision in his R&R, and recommended denying defendant's summary judgment motion because it had applied the wrong legal standard. Eko Brands recognized that the jury should not decide questions of egregiousness under the willful infringement standard, but is limited to deciding the predicate question of whether the defendant's infringement was intentional or knowing.

In adopting the R&R, Judge Stark pointed out that Judge Burke had cited to a 2018 District of Delaware decision holding that "stating a claim for willful infringement (and, therefore, proving such a claim) does not 'require that the patentee plead facts plausibly evidencing 'egregious' infringement conduct.'" Thus, according to Judge Stark, the standard applied in the R&R (and misapplied by the defendant) "predates Eko Brands and [defendant's] briefing in the instant action." Moreover, because Eko Brands issued before the defendant's SJ reply brief was due, defendant could have addressed it.

Having resolved the pending R&Rs, Judge Stark, in a section of the order titled "Moving Forward," noted that the jury trial scheduled to begin on November 6, 2020 would be rescheduled "potentially for as soon as November 30." The order further noted that the Court "is still considering how and when to proceed with this case (as well as numerous others)," and stated that the scheduling issue "will be addressed in a further order and/or during a teleconference to be scheduled in the very near future."

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