A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: March 2023

New Discovery Order in One of the Mavexar Cases

Andrew E. Russell, March 31, 2023
Mavexar Litigation Funding

Mavexar Crab

We haven't written about Mavexar for a while. But a new order today shows that the Court hasn't let up.

We discussed last year how, following a hearing in which the nature of Mavexar came out, the Court ordered the parties and attorneys in some of the Mavexar cases to submit to the Court a broad range of communications among the plaintiffs, Mavexar, and their attorneys.

Today, the Court issued a similar order in an additional case, Backertop Licensing LLC v. Canary Connect, Inc., C.A. No. 22-572-CFC (D. Del.). That case was the one at issue in the November 10 hearing, where the owner of Backertop testified that she is a paralegal who is married to …

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Dillegentsia

Nathan R. Hoeschen, March 30, 2023
Diligence Scheduling Order

Rule 16(b)(4) is deeply ingrained in the mind, body and soul of every DE lawyer. To modify the scheduling order, one must show good cause. Good cause, in turn, hinges upon the diligence of the movant.

More than 1,000 orders in DE patent cases analyze whether a party was diligent. Some have praised the herculean efforts of the parties (not a lot of those, honestly), while others cursed their lazy hides for daring hobble up the Courtroom steps (somewhat more common).

"Diligence" AI-Generated, displayed with permission

I have analyzed every single one to determine how often the Court found diligence.

I'm sorry that was a joke. We have a GoFundMe for an intern. Please donate if you would like that level of analysis. Instead I have looked at the last 10 such opinions and orders. Of those, a scant 3 found the movant diligent and granted the requested schedule extension, whilst 7 found the movant had delayed and denied the request.

Obviously this is a fact dependent inquiry, but it's something to consider the next time you move for an extension.

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The Stuff of Nightmares: Plaintiff Makes Insufficient JMOL Motion During Trial, Waiving Its Post-Trial JMOL Motion Entirely

Andrew E. Russell, March 29, 2023
JMOL Waiver

Bye bye, JMOL motion
Bye bye, JMOL motion Ioana Cristiana, Unsplash

In most patent cases that make it through trial, the losing party files a post-trial motion seeking judgment as a matter of law (JMOL), asking the judge to override the jury and find for them instead. It seems fairly uncommon to see a case that went to trial and did not settle that doesn't involve a post-trial JMOL motion from one side or the other.

Under the federal rules, to file a post-trial JMOL motion under FRCP 50(b), you must first file a JMOL motion during trial under FRCP 50(a). That motion must be made before the case is is submitted to the jury, and must "specify the …

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Secrets, Secrets Are No Fun . . .

Nathan R. Hoeschen, March 28, 2023
Sealing Redactions

It seems like only yesterday I was discussing the rare case where a third party moved to unseal the docket in a DE case. In fact, it was 12 days ago—time flies when blogging.

Time flying
AI-Generated, displayed with permission

Well it happened again, and this time we have an opinion.

The intervenors in CBV, Inc. v. ChanBond, LLC, C.A. No. 21-1456 (D. Del. Mar 28, 2023) (Mem. Order) were shareholders in the defendant, Chanbond, who sought to unseal various and sundry filings including the complaint, answer, and briefing on a TRO. The parties (perhaps readers of the blog?) largely agreed to unseal the filings but insisted that the dollar amount of a confidential settlement agreement should remain redacted.

Typically, actual dollar amounts contained in confidential agreements are one of the few things that pass muster on a motion to seal. The twist was that the dollar amount had accidentally been filed publicly in a different case months earlier.

Billy tells secrets, it is his truest nature
Billy tells secrets, it is his truest nature AI-Generated, displayed with permission

Oops.

Nevertheless, the parties (as well as several third-party signatories to the agreement who submitted their own briefs) insisted that ...

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Bifurcation Patterns

Emily DiBenedetto, March 27, 2023
Damages Trial

Density Column
AI-Generated, displayed with permission

Earlier this month, Judge Williams denied a defendant’s motion to bifurcate a second patent trial in Cirba, Inc. et al v. VMware, Inc., C.A. 19-742, D.I. 1623 (D. Del. Mar. 7, 2023) (oral order). In that case, the patentee had won an initial victory at trial, but the Court later granted a motion for a new trial based on evidentiary issues.

The defendant moved to stay the second trial because nearly all of the patents at issue had been found invalid—or were in danger of being found invalid—during a pending re-exam proceeding. The parties finished briefing, but the Court has not yet ruled or heard oral argument on the motion to stay. …

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How Much is Too Much? The Answer: Three Discovery Dispute Teleconferences in Two Months (Involving Nine Disputes)

Andrew E. Russell, March 24, 2023
Discovery Dispute Congestion

"From now on, your discovery disputes will be heard at the summit . . . " Alexander Milo, Unsplash

It's always good to know the limits when it comes to discovery disputes. In some cases, parties just can't seem to work together on discovery, and the parties end up bringing a lot of disputes.

At some point, the number of disputes may push the Court over the line. Famously (in Delaware—so perhaps not "famously" at all), former Chief Judge Sleet used to limit parties to three discovery disputes in patent cases before requiring them to seek leave. I don't know of any similar explicit limits set by any of our current judges, but pushing things too far can still …

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An Attorney Declaration

Nathan R. Hoeschen, March 23, 2023

ne of the more common questions to Delaware counsel is "do I need an attorney declaration to accompany exhibits?"

I do declare! There is something a-very wrong with my hands!
I do declare! There is something a-very wrong with my hands! AI-Generated, displayed with permission

The answer, thankfully, is no. No Delaware rule requires them—you can attach those suckers right to your brief and be done with it. Easy peasy (legally speaking).

The lone place I do see them occasionally used is in support of summary judgment motions. One reason is that there's often a lot of exhibits and a declaration can act as a convenient table of contents. I've also sometimes seen it suggested that an attorney declaration might shield the attached exhibits from challenges under FRCP 56(c)(2) "that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." How exactly it might do so is not clear, but I've never seen a decision on the issue going either way.

Until today.

The attorney declaration in MirTech, Inc. v. AgroFresh, Inc, C.A. No. 20-1170-RGA (D. Del. Mar. 23, 2023) (Mem. Op.) was of the usual sort—a representative ...

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A Stipulated Judgment Pending Appeal Must Have "Sufficient Detail"

Andrew E. Russell, March 22, 2023

Coals Fire
Pawel Czerwinski, Unsplash

In Continuous Composites, Inc. v. Markforged, Inc., C.A. No. 21-998-MN (D. Del.), after claim construction, the parties filed a stipulation of non-infringement of some of the asserted patents pending appeal to the Federal Circuit.

This is something that happens from time to time in circumstances like this, where the Court's construction means that the patentee cannot show infringement—and where the patentee wants to appeal the construction without having to litigate further.

In Continuous Composites, the parties stipulated that the Court would enter judgement of non-infringement on the patents with the claim construction issue, whenever the Court enters judgment on one remaining patent that apparently lacked that issue:

In view of the Court’s …
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Court Sua Sponte Suggests Transfer of Patent Action, Directs Parties Opposing Transfer to File Briefs

Andrew E. Russell, March 22, 2023
Transfer

Subway platform
Eddi Aguirre, Unsplash

Today Judge Andrews issued a memorandum order addressing a motion to dismiss in Metrom Rail, LLC v. Siemens Mobility, Inc., C.A. No. 22-49-RGA (D. Del.). He denied the motion (noting that "Allegations of direct infringement do not require much"), but questioned why the patent action was filed in Delaware at all:

The Court cannot help but note that it appears that the case should be transferred to the Southern District of New York, which would clearly have a much greater interest in a case that is all about the New York MTA [the Metropolitan Transportation Authority], its bid processes, and Plaintiff's allegations of nefariousness in connection with the same. Perhaps there is …
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Someday Law Will Find You, Break those Chains that Biiiinnd You

Nathan R. Hoeschen, March 21, 2023
Claim Construction

As a lawyer I am a creature of rules. Bound in a cage of local rules, standing orders and conventions, I sometimes struggle to see the possibilities that lay beyond. What might be seized if we broke those bonds?

AI-Generated, displayed with permission

It turns out, nothing good.

Few cases illustrate this lesson better than Bausch & Lomb Inc. v. SBH Holdings LLC C.A. No. 20-1463-GBW-CJB (D. Del Mar. 20, 2023) (Oral Order). Earlier this month (following a bit of a trend in the district), Judge Burke issued an oral order requiring the defendant to clarify its claim construction positions:

The Court, having reviewed the parties' Joint Claim Construction Chart ("JCCC"), hereby ORDERS that by no later …
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