A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: October 2020

Court Orders "Unusual" Preliminary 30(b)(6) Deposition, Suggests Sanctions After Defendant Potentially "Hiding the Ball" on Damages

Andrew E. Russell, Oct. 18, 2020
Damages Sua Sponte

Google tells me
Google tells me "hide the ball" is a football thing. Dave Adamson, Unsplash

In Guest Tek Interactive Entertainment, Ltd. v. Nomadix, Inc., C.A. No. 18-1394-RGA (D. Del.), plaintiff sent RFPs for various financial documents, but defendant produced only a single page profit and loss statement for each year, claiming no more was available.

Plaintiff brought a discovery dispute and asked Judge Andrews to order production of any further documents in defendant's possession.

Judge Andrews declined. Instead, he sua sponte suggested that the parties resolve this via a 30(b)(6) deposition about the kinds of financial information that defendant keeps:

[D]o a 30(b)(6) deposition and find out if there are any other documents. And you know, …
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101 Days Are Not Always Funerals for Patents

Nathan R. Hoeschen, Oct. 15, 2020
KB 101 Day

Artist's Rendering of First 101 Day Hearing
Artist's Rendering of First 101 Day Hearing Execution of Mary, Queen of Scots, from "Illustrated London News", William Luson Thomas

It was not so long ago that plaintiffs might enter a § 101 day hearing before Judge Stark with hats in hands, ready to plead for any small mercy. To some, having one's case set for a § 101 day hearing was to know the day and the hour. But that was back in the heady days of early 2019. With two new § 101-day rulings issued by Judge Stark just this week, plaintiffs need no longer dread these (approximately) quarterly events.

Claims of All Three Patents Invalidated At Inaugural § 101 Day

At the inaugural hearing in …

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Don't Get Your Hopes Up for a New District of Delaware Patent Jury Trial Date in 2020

Andrew E. Russell, Oct. 14, 2020
Scheduling Jury Trials

Unsurprisingly, in light of COVID-19, recent signs indicate that the Court is all booked up for this year, and probably for a large part of next year.

Here, for example, is a Judge Stark order from yesterday:

ORAL ORDER: Having discussed with the parties on repeated occasions whether and when to schedule this patent infringement case for a jury trial (see, e.g., D.I. 474, 549, 583, 590, 591, 593, 596, 605, 607, 608, 610-15) and having found (unfortunately) no date that is reasonable and available to all parties and to the Court, IT IS HEREBY ORDERED that trial in this matter is CONTINUED to a DATE TO BE DETERMINED, most likely in 2021 (and certainly NOT in 2020). IT …
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If You Do Not Plead Indirect Infringement, You Cannot Argue It (Without Amending)

Andrew E. Russell, Oct. 14, 2020
FRCP 15 Final Infringement Contentions

Judge Burke granted a motion to strike yesterday where the plaintiff attempted to add indirect infringement allegations in final infringement contentions, but had not pled them in the complaint.

Per Judge Burke:

It is undisputed that Plaintiffs have never pleaded indirect infringement of these patents, (D.I. 170 at 1), and so any portion of their [final contentions] that relate to that subject matter are simply about infringement claims that are not a part of this case.

He also preemptively denied any future request to amend the complaint as coming too late:

Although they have not filed a formal motion seeking to amend their currently operative complaint to include such [indirect infringement] claims, to the extent Plaintiffs suggest they would …
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Judge Stark Addresses Jury/Judge Responsibilities on Willfulness, Pushes Trial Date

Jeff Castellano, Oct. 13, 2020
Willfulness COVID-19

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 Stark also pushed the November jury trial, but possibly by just a few weeks.

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Potential Civil Jury Trial Starting Oct. 26

Andrew E. Russell, Oct. 9, 2020

Judge Norieka is considering holding a civil jury trial starting October 26, 2020 in Butler v. Hanover Foods, C.A. No. 19-1221-MN (D. Del.). The parties had their pretrial conference last week, and the judge intends to issue a decision next week about whether to go forward with the trial.

If the Court decides to go forward, this will be the first post-COVID civil jury trial I've heard about so far.

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Substantial Completion Is Really More of a State of Mind

Nathan R. Hoeschen, Oct. 8, 2020
Substantial Completion Sanctions

Typical small production of recent unimportant documents served after substantial completion deadline
Typical small production of recent unimportant documents served after substantial completion deadline Can you find the book you need?, Carles Rabada, Unsplash

"Substantial completion of document production" is not exactly a bright line.

Is it more than half?

More than 90%?

At least in Delaware, cases interpreting the issue are light on the ground. Usually, when presented with a steaming pile of documents after the substantial completion deadline, the parties will work out some modest schedule extension without any court intervention. This is probably for the best, but it means that the parties are usually working from a blank slate when negotiating the necessity and length of any extension.

Luckily for us, Judge Burke issued an Oral Order …

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District of Delaware Announces Socially-Distanced Jury Restart Guidelines, Jury Trial Procedures

Andrew E. Russell, Oct. 7, 2020
COVID-19

COVID-19
CDC / Alissa Eckert, MS; Dan Higgins, MAMS

The Court emphasized that these are just guidelines, not law, and may still be objected to. Here are some highlights:

Jury Selection

  • Various screening measures and a mask requirement
  • Potential jurors will be split into groups of 25, with no more than two groups in the courthouse at a time

Deliberations

  • Deliberations (and breaks) will be in the adjacent courtroom, with windows papered over and microphones disabled, rather than the usual jury room
  • No mask requirement in the adjacent courtroom if jurors are 6 feet apart
  • Jurors will get a computer with exhibits and a projector; one juror will operate

Courtroom Procedures

  • All individuals generally wear masks
  • Counsel "speaking from a socially-distanced …
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Court Instantly Rejects Unopposed Motion to Redact That Lacked Supporting Declaration

Andrew E. Russell, Oct. 6, 2020
Sealing Redactions

Always a bit terrifying:

The [unopposed] motion to redact (see C.A. 19-311-RGA D.I. 96) is DENIED. The redactions are extensive, and the request to redact is unsupported by any statement under oath. I do not think the motion meets the requirements of Avandia Marketing. Ordered by Judge Richard G. Andrews on 10/2/2020.

Merck Sharp & Dohme Corp. v. Anchen Pharmaceuticals, Inc., 19-311-RGA, D.I. 97 (D. Del. Oct. 2, 2020).

If you want your motion to redact to succeed these days, you really need to keep the redactions narrow, and it's safest to offer ample support.

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Judge Andrews Declines Request to Move January Trial Due to Coronavirus

Andrew E. Russell, Oct. 6, 2020
COVID-19

In M2M Solutions LLC, et al. v. Sierra Wireless Am. Inc., C.A. No. 14-1102-RGA (D. Del.), the parties submitted a joint letter last week asking Judge Andrews to delay their December 2020 PTC and January 2021 jury trial until "spring 2021" due to COVID-19.

Judge Andrews quickly declined, via an oral order issued on the same day:

[T]he Court is not now inclined to continue the trial to spring 2021. Circumstances could change for the better; travel restrictions could be lifted. And the pretrial conference, at least, can be done remotely. The parties may submit a letter after Thanksgiving revisiting the issue in light of then−existing circumstances.
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