A Blog About Intellectual Property Litigation and the District of Delaware

"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 opinions:

ABB submits that there is good cause for the issuance of a protective order: (1) precluding Plaintiff from filing these documents publicly and (2) preventing the discussion of the above-identified information found in emails or text messages (or other documents) on the public record during an evidentiary hearing or in any public opinion that may issue from the Court.

As ABB explains it, the settlement communications were confidential, and would harm ABB if disclosed:

ABB expects that all of its settlement communications including those related to its product sales, exchanges of offers and counteroffers, the consideration paid, and the terms of the agreement will be produced when Plaintiff complies with this Court’s order. ABB’s agreement with Lamplight includes a confidentiality provision that precludes either party from publicizing the agreement or its terms. . . . The confidentiality provision is not mere boilerplate. ABB expected that its settlement discussions and the resulting agreement would not be aired openly. The license agreement includes key terms including consideration, identification of licensed parties, and terms related to the scope of the rights being granted. . . . Additionally, the agreement includes recitals based on representations ABB made concerning sales of the products identified by the Plaintiff in its Complaint. Id. ABB’s product sales, the consideration paid, and other terms of the settlement are confidential and are not known to the public. Id.
The public disclosure of this information would harm ABB by disclosing the consideration paid, the rights received, the parties covered by the agreement, and information about the sales of the products at issue in the underlying action. Public disclosure of this information is likely to harm ABB by providing would-be licensors insights into ABB’s licensing practices, competitors of ABB insights into ABB’s product sales, and other prospective licensees insights into the consideration ABB paid.

ABB also went out of its way to say that it does not oppose the order itself:

To be clear, ABB is not asking this Court to limit or withdraw its Memorandum Order. ABB instead is only asking that certain protections be put in place to avoid the public disclosure of ABB confidential information.

Smart! But Weird Timing

As we noted in our post about the orders, there is some question about how, mechanically, the Mavexar-related LLCs will "produce" this information to the Court, and whether the information will end up being public.

I don't know what the outcome of the motion will be, but it's good thinking on the part of the defendants' attorneys to protect their client and get ahead of the issue. They don't want to suffer collateral damage in the Court's enforcement of its standing orders.

That said, the timing of the motion was a bit odd. This morning, the Court granted a motion to stay the case pending the outcome of the Nimitz petition for a writ of mandamus. Defendant filed its motion for a protective order after the stay, at least according to the docket. I imagine the defendant had its motion ready to go and wanted to get it on the docket despite the stay.

Should We Stop with All the Mavexar Posts?

I apologize if it feels like we've turned into the Mavexar Blog lately, but I promise it will pass as soon as it stops being interesting. Right now, lots of people are talking about it (I saw today that Reuters picked it up), and it's an important issue, so I think it deserves the attention.

This happens to the blog occasionally—in the past we've been the COVID-19 Restrictions Blog, the Redactions Blog, the Court Congestion Blog, and the New Judge Williams Blog. But we always return to our regularly scheduled programming eventually.

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