A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: December 2022

Also Maybe Fill the Pages

Nathan R. Hoeschen, Dec. 13, 2022
Page Limits

The parrot is supposed to be shrugging, but we're not quite at the singularity yet
AI-Generated, displayed with permission

Look, I know what I said in the last post. I can read.

But I just noticed the opinion in Kroy IP Holdings, LLC v. Groupon, Inc., No. 17-1405-CJB (D. Del. Dec. 2, 2022) which had an interesting footnote that's worth pointing out.

Kroy dealt with collateral estoppel issues following a series of IPR's that invalidated numerous claims. Following the the IPR's, the plaintiff asserted new claims and the defendant moved to dismiss arguing that these 20-ish new claims were not materially different from those already invalidated. The plaintiff responded to the motion without devoting much space to reasons why some of the specific claims were not materially different, noting that …

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Keep It Concise

Nathan R. Hoeschen, Dec. 12, 2022
Summary Judgment

Chris Chow, Unsplash

The concise statement of facts is perhaps the trickiest part of SJ practice in Delaware. Given the limited space available in the briefs, it's often the only place where a party has room to lay out the story behind their motion and the case as a whole.

The danger, of course, is that you'll put in some unnecessary fact which the other party may dispute. While this might seem like a minor worry, Judge Connolly has denied many SJ motions on this basis alone.

Last week Judge Williams took the same tack in Victaulic Company v. ASC Engineered Solutions, LLC, C.A. No. 20-887-GBW (D. Del. Dec. 6, 2022) (Mem. Order), a case which he …

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EXTRA! EXTRA! Federal Circuit Denies Nimitz Petition

Nathan R. Hoeschen, Dec. 8, 2022
Mavexar Litigation Funding

AI-Generated, displayed with permission

Late breaking news in the Mavexar saga today.

Very Brief Background

Nimitz technologies was one of the Mavexar-related entites that appeared at a hearing last month before Judge Connolly, where they were ordered to:

"produce to the Court" (1) their communications with Mavexar and IP Edge regarding (a) Nimitz's formation, acquisition of patents, and potential liability for asserting those patents in these cases, (b) the 328 patent, and (c) the initiation and settlement of the cases Nimitz filed in this Court; (2) retention letters and/or agreements between Nimitz and [plaintiff's attorney's] firm; (3) monthly bank statements for any and all bank accounts held by Nimitz for the time period during which it filed the 11 complaints …
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D. Del. Announces Selection of New Magistrate Judge Laura D. Hatcher to Replace Chief Magistrate Judge Thynge

Andrew E. Russell, Dec. 7, 2022
DED Judges

District Court Seal

The District Court yesterday announced the selection of Laura D. Hatcher as the new magistrate judge to replace the irreplaceable Chief Magistrate Judge Thynge, who has announced plans to retire on March 31, 2023.

As the Court sets forth, Ms. Hatcher has worked for two firms here in Delaware, as well as the U.S. Attorney's Office:

Ms. Hatcher is currently the Chief of the Civil Division of the United States Attorney's Office for the District of Delaware. In her five years as an Assistant United States Attorney, Ms. Hatcher has handled a wide variety of civil and criminal matters. Before joining the U.S. Attorney's Office, Ms. Hatcher worked as a litigation associate with DLA Piper (2012-2017) and Richards, Layton & …
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A B-Plot in the Mavexar Saga

Nathan R. Hoeschen, Dec. 6, 2022
Mavexar Mandamus

Hasnain Sikora, Unsplash

The Federal Circuit made its second foray into the Mavexar (I think) saga on Friday when it ruled on a new petition for Mandamus is In re: Swirlate IP LLC.

The plaintiff in Swirlate filed a petition for mandamus on November 30, seeking to stop a scheduled December 6 hearing.

I should note at the outset the while the Swirlate case seems to mimic the M.O. of a Mavexar entity—a Texas LLC with a single managing partner with no apparent connection to the patent—the Court has not yet held a hearing on the issue, so we can't say conclusively that the matter is related. It was, however, scheduled for a hearing in December that that sole …

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Another Order to Produce Litigation Funding Discovery—This Time Against What Looks Like a Practicing Entity

Andrew E. Russell, Dec. 5, 2022
Litigation Funding Discovery Dispute

Money
Pepi Stojanovski, Unsplash

Last week, Chief Magistrate Judge Thynge issued an opinion addressing a motion by accused infringers to compel the patentee to produce litigation funding discovery and opinion letters relating to the patents-in-suit.

While it involves litigation funding discovery, this case is a bit different from the recent Mavexar hearings. Here, the patentee is MHL Custom, Inc. who, it appears, is a practicing company and not an NPE. Beyond that, the case is still active (unlike some of the Mavexar cases) and the discovery is sought by the defendant, not the Court itself. In other words, this is a more typical ruling.

But the opinion is still notable. The Court granted the accused infringers' motion for three categories …

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A New Wrinkle in Redaction Practice

Nathan R. Hoeschen, Dec. 4, 2022
Redactions

REDACTED PAGE
Jeff Castellano

The IP/DE lore on redaction practice now extends to many volumes. To summarize for the more casual reader, in the long, long ago (2019-ish) redacting documents was more or less a free for all. Mid 2020 saw Judge Connolly and Judge Andrews begin to challenge the practice of over-redaction ultimately culminating with Judge Andrews to essentially banning the redaction of documents in their entirety in 2021. Recently, this has been extended to capture cases where the vast majority of the document is redacted as well.

Judge Williams seems to have added yet another wrinkle to the practice in an aside in Victaulic Company v. ASC Engineered Solutions, LLC, C.A. No. 20-887-GBW (D. Del. Nov. 30, 2022) (Mem. Order). The opinion itself dealt with old-style IPR estoppel (and is interesting in its own right), but closed with the following note:

Additionally, D.I. 196-1 , D.I. 220, and D.I. 222 were filed under seal, but the Court cannot find any substantive redactions in those documents. See D.I. 209-1 ; D.I. 240; D.I. 241. The Court will unseal those documents within seven (7) days unless either party objects. The
Court requests that parties not burden the Court with the unnecessary sealing of documents, such as publicly available documents, see, e. g. , D.I. 2 41 , Ex . A. 4

Id. at 7.

I had to read this passage a couple of times before ...

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Amicus Brief Mentions Backertop's Failure to Disclose Mavexar Under C.D. Cal. Rules; Backertop Tries to Fix It

Andrew E. Russell, Dec. 1, 2022
Mavexar Litigation Funding

I'm not sure what to make of the name
KWON JUNHO, Unsplash

We mentioned the other day that Backertop Licensing LLC, one of the Mavexar-related LLCs, had filed two new cases in the Central District of California. We talked about how the C.D. Cal. requires disclosure of parties with a pecuniary interest, and how Backertop had not disclosed Mavexar.

Yesterday, the HTIA filed an amicus brief at the Federal Circuit that pointed this situation out (citing our post!):

In the past week alone, an entity that appears related to Mavexar (Backertop Licensing, LLC) filed suit without disclosing Mavexar’s financial interest, despite a local rule requiring disclosure of “all persons … and corporations … that may have a pecuniary interest in the outcome of the case.”

Also yesterday, Backertop filed new ...

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Six Amicus Briefs Filed in Support of Chief Judge Connolly's Litigation Funding Orders

Andrew E. Russell, Dec. 1, 2022
Mavexar Litigation Funding

Artist's depiction of amicus attorneys standing guard outside of the District of Delaware
Artist's depiction of amicus attorneys standing guard outside of the District of Delaware AI-Generated, displayed with permission

There has been so much activity in the Mavexar cases this week that it's hard to keep up. Over the last two days, various parties have requested leave to file a total of six amicus briefs in response to the Mavexar petition for a writ of mandamus in the Nimitz case, and the respondent filed their brief as well.

All of the briefs were great, and many repeat some of the same arguments. I thought it might be worthwhile to take a spin through them and mention a few notable or unique points in each.

(If you need an overview, check out our …

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