We posted a few weeks ago that the Court instituted a new 5pm filing deadline, starting September 1.
We're now past the August 31 filing deadline, so the 5pm deadline applies for filings going forward. Just a friendly reminder!
Entries for date: August 2022
Judge Andrews resolved what seems like a tough § 101 motion today, and I thought the claims of the patent (and the outcome) were interesting.
The patent involves a system for mixing gasoline and butane. The patent specification said that these fuels were previously mixed in multiple ways, including in a laborious process involving manually adding butane to a tank of gasoline and then stirring the two together.
There were a number of claims at issue, but the one that stands out most to me simply claims the whole system and what it does, without claiming how the components work:
A system for blending gasoline and butane at a tank farm comprising:
a) a tank of …
Typically, parties on the same side of the V like to put up a united front. Whatever things might look like behind the scenes, in public, they make a big show of laughing loudly at each other's jokes and slapping one another on the back with more than necessary force.
Apparently, that all goes out the window when fees are on the line.
Earlier this year, Judge Andrews awarded the defendants attorneys' fees in M2M Solutions LLC v. Sierra Wireless America, Inc, C.A. No. 14-1102-RGA (D. Del. Aug 16, 2022) (Clarifying Order), largely because the plaintiffs had pressed an infringement theory contrary to the Court's claim construction.
As it happened, there were two unrelated …
Parties often try to expressly reserve, preserve, and/or avoid waiver of arguments or the right to seek relief, often in a paper filed or served on the deadline to make the argument or seek the relief. It may not always work—but it's not very costly to give it a shot, either.
Last week, in Aqua Connect, Inc. v. TeamViewer US, Inc., C.A. No. 18-01572-MN (D. Del.), Judge Noreika rejected an attempt by a plaintiff who prevailed at trial to avoid having to raise its arguments regarding post-trial interest during post trial briefing.
After plaintiff won a $5.7m verdict in a jury trial …
This is a way of drafting scheduling order deadlines I haven't seen before. In Novarad Corp. v. Medivis, Inc., C.A. No. 21-1447-VAC-MPT (D. Del.), the parties initially agreed to a scheduling order that included a deadline for document production to be "substantially complete."
Many (maybe all) of the judges' form scheduling orders include a deadline for substantial completion of document production. Parties generally understand the substantial completion deadline to mean the production of enough documents that fact depositions can begin.
Exactly how many documents that is can be an occasional source of disagreement. There is not a lot of well-known precedent about exactly what proportion of documents must be produced before the substantial …
Confusion over a deadline can lead to missed deadlines. But when parties draft the initial scheduling order in an action, there are at least two common ways that ambiguities may arise, both of which seem easy to eliminate.
“# Days After the Scheduling Conference” is Ambiguous If No Scheduling Conference Takes Place
The first common source of ambiguity in recent scheduling orders is dates scheduled to occur a set number of days after the scheduling conference.
Why is that a problem? Well, we have noticed a growing trend in which the Court issues Scheduling Orders without a Scheduling Conference. Instead, the Court may adjust any proposed dates by crossing them out on the proposed order, writing in the Court’s preferred date(s), and issuing the adjusted order on the docket. Thus, the parties may have a date set “30 days after the Scheduling Conference”—but there was no scheduling conference.
When that happens, the correct result is unclear. Should the deadline be interpreted to mean 30 days from when the Rule 16 Conference was scheduled to occur? Or 30 days from the Scheduling Order? Or should ...
If the other side is giving you spotty details on damages during Rule 26 initial disclosures, we may have a case for you. Judge Williams hasn’t issued opinions from the bench yet, but this Special Master opinion from last year challenges the “we’ll wait for expert reports” excuse with respect to damages contentions.
In TQ Delta, LLC v. DISH Network Corp., C.A. 15-614-RGA (D. Del. Oct. 2021), defendants sought to compel plaintiff to supplement its initial disclosures and contentions on damages, and Judge Williams granted the motion.
Rule 26(a)(1)(A)(iii) Computation of Damages
Rule 26(a)(1)(A)(iii), requires “a computation of each category of damages claimed by the disclosing party . . . .” Plaintiff said …
In a pair of orders last week in Shopify Inc. v. Express Mobile, Inc., C.A. No. 19-439-RGA (D. Del.), Judge Andrews set out guidelines for the trial testimony of two fact witnesses, who will offer testimony at trial regarding some prior art references (among other things).
The procedural background here is surprising. The patentee moved in limine to exclude the testimony of these witnesses, and the Court addressed the motion at a pre-trial status conference. There, the Court directed that the parties depose the witnesses and that the accused infringer submit proffers of the testimony that will be offered at trial.
That a Lot of Briefing
The parties then filed a stipulation setting …
We talked a couple of days ago about how, in Longbeam Technologies LLC v. Amazon.com, Inc., C.A. No. 21-1559-CFC (D. Del.), Chief Judge Connolly stayed the action after raising plaintiff's inadequate disclosures at a § 101 hearing.
But, at the same hearing, plaintiff actually prevailed on the § 101 motion—and Chief Judge Connolly made some notable comments about how the Federal Circuit has responded to his previous § 101 decisions, and what that means for cases going forward.
Case 1, Universal Secure: Affirmed
The first case, Universal Secure Registry LLC v. Apple Inc., …
We've talked a lot about Judge Connolly's April 2022 standing orders on disclosure statements and litigation funding, including earlier this month when we Judge Connolly stayed an action after a plaintiff failed to fully comply with those orders.
(Plaintiff in that action, by the way, filed an updated disclosure statement claiming it has no knowledge to disclose—we'll have to see how the Court responds to that).
Yesterday, it happened again, but it was triggered by a clever filing by a defendant. In Longbeam Technologies LLC v. Amazon.com, Inc., C.A. No. 21-1559-CFC (D. Del.), the Court put an order on the docket for the parties to comply with its standing orders:
ORAL ORDER: The parties are directed to certify within five days that they have complied with Chief Judge Connolly's April 18, 2022 Standing Order Regarding Disclosure Statements Required by Federal Rule of Civil Procedure 7.1. The parties are also reminded of their obligation to comply with Chief Judge Connolly's April 18, 2022 Standing Order Regarding Third-Party Funding Arrangements. Ordered by Judge Colm F. Connolly on 5/13/2022. (nmf) (Entered: 05/13/2022)
In response, plaintiff filed an updated Rule 7.1 statement but, as far as I can tell, no litigation funding
