A Blog About Intellectual Property Litigation and the District of Delaware

Entries for date: November 2022

Charging Bull
AI-Generated, displayed with permission

Well this clears things up.

Background of the Mandamus Petition

We've talked about how Chief Judge Connolly has held multiple hearings in the Mavexar actions, examining the owners of several patent assertion LLCs and discovering that the real party in interest seems to be Mavexar LLC. The witnesses testified that Mavexar recruits people to serve as plaintiffs, but then runs the litigation themselves—including seemingly all substantive decisions, even settlement.

After the most recent hearings, Chief Judge Connolly issued a series of orders requiring production to the Court of various communications between the LLCs, their attorneys, and Mavexar. One of the entities involved, Nimitz, immediately filed a petition for a writ of mandamus to stop the Court's …

Space Fighters
AI-Generated, displayed with permission

I saw this case come in just now, and thought it was worth a post. Today, Power Integrations, Inc. brought an action against Waverly Licensing LLC, Mavexar LLC, Array IP LLC, and IP Edge LLC, alleging that those companies had engaged in a harassment campaign against Power Integrations over alleged patent infringement, and seeking a declaratory judgment of non-infringement.

According to the complaint, Waverly Licensing, LLC—by itself—sued Power Integrations late last month in the Western District of Texas. That case is still pending, according to the docket, and is assigned to Judge Robert Pitman (not Judge Albright). The answer deadline is set for January.

Now, Power Integrations brought a DJ action here in Delaware against …

AI-Generated, displayed with permission

Although we have a "default standard" for discovery in DE, there's a lot of leeway for deviation based on the facts of the case. More (or fewer) custodians, more (or less) metadata, search terms that call eldritch horrors from their squalid caches -- pretty much anything is on the table.

Pretty much.

There's always a line somewhere, and I think we found it last week in Acceleration Bay, LLC v. Amazon Web Services, Inc. C.A. No. 22-904-RGA-MPT (D. Del. Nov. 22, 2022). The defendant, AWS, wanted to include the following passage in the ESI Order:

Acceleration Bay shall not seek email discovery relating to infringement or damages, except that Acceleration Bay …

If you're going to have to face an <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Non-Practicing Entity'>NPE</a> patent suit anyway, C.D. Cal. is a nice place to go for hearings.
If you're going to have to face an NPE patent suit anyway, C.D. Cal. is a nice place to go for hearings. Venti Views, Unsplash

I heard over the holiday break that one of the Mavexar-related entities, Backertop Licensing LLC, has continued to file suits, this time in the Central District of California. I also heard that they did not disclose Mavexar as an entity with an interest in the case, despite a rule requiring them to do so.

Yep, That Looks Like Backertop

I checked PACER, and it indeed looks like an entity …

The Court has said in the past that "winning summary judgment in a patent case is like hitting a hole in one." Well, yesterday DePuy Synthes scored a hole in one, invalidating all asserted claims of one patent on SJ in RSB Spine, LLC v. DePuy Synthes Sales, Inc., C.A. No. 19-1515-RGA (D. Del. Nov. 22, 2022).

How Did They Do It?

Basically, they won it at claim construction, but couldn't end the case until summary judgment.

The patent at issue, U.S. Patent No. 6,984,234, covers a "base plate" that a surgeon can screw into two bones in a person's spinal cord to stabilize them.

The base plate screws into the bones (blue, below), and a …

Crissy Jarvis, Unsplash

An interesting opinion from Judge Thynge last week on case narrowing, and in particular, how to count invalidity arguments.

The defendant in Targus International LLC v. Victorinox Swiss Army, Inc.., C.A. No.20-464-RGA-MPT (D. Del. Nov. 18, 2022), had agreed to reduce the number of prior art "arguments" to 5. In its expert reports, however, they had counted reference "A in view of B", as well as "B in view of A" as a single argument. This lead to the inclusion of (what plaintiff counted as) more than 5 arguments. Plaintiff then moved to strike the extraneous arguments and Judge Thynge agreed, holding:

In its letter brief, Defendant maintains that it "never labeled any reference …

"Lamplight" isn't the worst name for a patent assertion entity. Riley Bourdon, Unsplash

Today brought yet another twist in the ongoing Mavexar saga. In one of the cases, a defendant—not the plaintiff—moved unopposed for a protective order to prevent the Mavexar-related LLC from producing the documents that the defendant sent to it (and that, presumably, the Mavexar-related LLC may have sent to Mavexar itself).

Specifically, the defendant moved for a protective order to "prevent the public filing of three categories of information that ABB expects to be provided by Plaintiff and its counsel in response to the Court’s Memorandum Order," including (1) documents related to sales and royalty rates, (2) communications related to the terms of the settlement agreement, and (3) the agreement itself.

As to those three categories, the defendant asked the Court to issue a protective order that protects the info from disclosure in both filings and in future hearings or ...

Markus Spiske, Unsplash

These Mavexar-related cases are developing so fast, we can hardly keep up!

We've talked about how Chief Judge Connolly issued an order directing certain of the Mavexar-related entities to produce documents, including materials related to their communications with Mavexar. We also discussed the Nimitz entities' petition for a writ of mandamus to stop enforcement of the order and to stop the Court's "judicial inquisition."

Yesterday, the Federal Circuit responded and stayed the order:

Defendants CNET Media, Inc., Bloomberg L.P.; BuzzFeed, Inc.; and Imagine Learning, Inc. are directed to respond to the petition no later than November 30, 2022, whether defendants fully defend, partly defend, or decline to defend the challenged order. …

AI-Generated, displayed with permission

Judge Andrews' policy of rejecting filings that redact exhibits in their entirety is well known to our readers. Judge Andrews has been persistent in the practice over the past year or so, issuing quite a few orders substantively identical to the below:

The redacted filings (D.I. 40 ) is REJECTED because parts of it are redacted in its entirety. Absent a compelling reason, supported by a statement under oath by a party, redactions in their entirety are impermissible; redactions must be done so as to redact the least possible amount of the materials submitted. Failure to make a good faith attempt at such redactions may result in sanctions, the most common of which would be simply …