A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: 2021

Expert's On-the-Stand Admission That He Changed Opinion after Speaking to Attorneys, Resulting in $444,000+ in Fees, Insufficient to Render Case Exceptional

Andrew E. Russell, July 26, 2021
§ 285 Trial

"Oh god. What did our expert just say?" Jamie Haughton, Unsplash

More and more NPE cases have moved to Delaware over the last few years, following TC Heartland. Defendants often try to deal with NPE cases by threatening fees under 35 U.S.C. § 285, with varying degrees of success.

A § 285 fees opinion today by Judge Stark offers an interesting data point as to what kind of conduct is not sufficient to render a case as a whole exceptional under § 285, as well as a lesson on how to best to pursue a fees motion.

In Intellectual Ventures I LLC v. Trend Micro Inc., C.A. No. 12-1581-LPS (D. Del.), the patentee's …

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Judge Andrews: "Simply Needing More Time Is Not Good Cause" to Push Trial

David M. Fry, July 23, 2021
Scheduling Trial Calendar

As jury trials in Delaware continue to get back on track, the judges' trial calendars are jam packed for 2021 and 2022. What does this mean if you have an upcoming trial date and need to move it?

In some cases, you might be out of luck. Yesterday, Judge Andrews denied an unopposed motion to extend a case schedule that would have pushed trial from June 2022 to September 2022. The purpose for the request was to provide additional time to complete fact discovery.

In an oral order, Judge Andrews rejected the request outright:

The Parties say they need more time, but simply needing more time is not good cause. The Court's schedule is already completely full …
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Brief It Or Lose It

Nathan R. Hoeschen, July 22, 2021
Preclusion Reply Briefs

Sometimes Arguments Solve Nothing
Sometimes Arguments Solve Nothing Sarah Kilian, Unsplash

It's uncommon to see the Court dismiss an ANDA case before trial. The patents are usually grounded enough to avoid easy 101 issues, infringement is as likely to be conceded as disputed, and any other serious invalidity contentions are normally simply reserved for trial (none of our Delaware judges allow for SJ motions in ANDA cases without leave).

That being the case, Judge Stark's dismissal of the complaint in Almirall, LLC v. Torrent Pharmaceuticals Ltd., C.A No. 20-1373-LPS, D.I. 50 (D. Del. July 13, 2021) ("Almirall II"), via a 12(c) motion is worthy of comment merely because it dismissed an ANDA complaint on the pleadings before Markman. …

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Court Refuses to Allow Expert to Evade Adverse Construction Via Doctrine of Equivalents

Andrew E. Russell, July 21, 2021
DOE Daubert

Yesterday, visiting Judge Bataillon excluded a patentee's expert opinion where the expert tried to use the doctrine of equivalents to skirt the Court's construction of a term.

The Court had initially rejected a preliminary injunction motion by the patentee, holding that it had failed to show a likelihood of success on infringement based on its proposed claim construction.

The patentee then proposed the same construction during claim construction before the magistrate judge, who issued an R&R rejecting it.

The patentee then objected to the R&R, but the Court adopted the construction in the R&R and again rejected the patentee's proposed construction.

Specifically, the Court held that the claims required two elements that each have a different thickness and composition: …

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Arbitrability Goes to the Arbitrator, Judge Andrews Rules

Jeff Castellano, July 20, 2021
Arbitration Covenant

When parties seek to dismiss or stay a patent dispute in federal court in favor of arbitration pursuant to an agreement, someone needs to decide whether the parties' dispute falls within the scope of the agreement's arbitration provision (and is thus arbitrable). Whether that question is decided by the court or the arbitrator depends on the language of the agreement. So, in essence, the court must interpret the agreement for the limited purpose of divining the parties' intent (or lack thereof) to shunt arbitrability to the arbitrator.

In a recent order in Nidec Corp. v. Seagate Technology LLC, C.A. No. 21-52-RGA, Judge Andrews found...

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Judge Bibas: "Deadlines are not suggestions. Litigants must respect them."

Andrew E. Russell, July 19, 2021
Substantial Completion FRCP 26

Penny
Adam Nir, Unsplash

As we've discussed, parties sometimes treat the deadline for "substantial completion of document production" as a soft deadline, doing a "rolling production" afterwards that can be quite voluminous. An opinion from Judge Bibas today shows the risk of not taking that deadline seriously.

In the opinion, Judge Bibas excluded over 60,000 rows of spreadsheet sales data that were produced by a defendant in an Fair Labor Standards Act class action, after the defendant waited until six months after the deadline for substantial completion of document production to produce the data.

As usual for Judge Bibas, his opinion is an interesting read and a bit different from what we typically see from other judges in Delaware. …

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Judge Fallon Pushes Back on Excessive Sealing

David M. Fry, July 16, 2021
Sealing

We've written about the strong presumption of public access in the Third Circuit, which has led the D. Del. judges to push back on sealing requests in recent years. Judges frequently deny requests to seal judicial records (like hearing transcripts and opinions), and some have taken a more active role in monitoring sealed filings on their dockets.

On Tuesday, for example, Magistrate Judge Fallon ordered a party to provide "a factually detailed explanation" for why the exhibits to the redacted version of a sealed letter brief met the Third Circuit standard for sealing:

ORAL ORDER TO SHOW CAUSE re: D.I. 161 : On or before close of business on July 14, 2021, Defendants shall submit a letter …
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Failing to Sue Other Competitors Weighs Against Permanent Injunction

Nathan R. Hoeschen, July 15, 2021
Injunction

I know this is not a water heater but it's surprisingly hard to find a public domain picture of one
Sigmund, Unsplash

Judge Stark issued an interesting opinion last week, deciding not to grant a permanent injunction. Although these requests are denied more often than not, this particular opinion was interesting because it rested, in part, on the plaintiff's conduct in failing to pursue third-party (alleged) infringers.

When it came time to rule on the permanent injunction issue, the Court had already determined that the parties in AO Smith Corp. v. Bradford White Corp., C.A. No. 18-412-LPS, D.I. 244 (D. Del. July 9, 2021) were direct competitors. AO Smith, D.I. 220 at 13 (D. Del Mar. 31, 2020). The relevant market also had two other substantial players not involved in the suit.

Unfortunately for the …

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Judge Noreika Sanctions Patentee for Mistreating Source Code

Andrew E. Russell, July 13, 2021
Source Code Protective Order

Fire. I couldn't find an image of raining brimstone.
Fire. I couldn't find an image of raining brimstone. Ricardo Gomez Angel, Unsplash

On Monday, Judge Noreika sanctioned a patentee plaintiff for not following the protective order regarding source code.

Here is what the plaintiff did:

Plaintiff violated the Protective Order at least six times over a period of almost one year by: 1) creating an electronic copy of the source code on July 6, 2020; 2) sending that electronic copy to a vendor that had not signed the Acknowledgement and Agreement to Be Bound by Stipulated Protective Order (which actually violated two provisions of the Protective Order); 3) failing to maintain a log of all copies; 4) storing an electronic and apparently unencrypted copy of the source code …
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