Is the reign of Pennypack coming to an end?AI-Generated
We talked earlier this year about a decision by Judge Burke that struck a parties' final infringement contentions under a good cause standard, and declined to apply the much looser Pennypack standard.
Today, citing Judge Burke's opinion, Judge Williams likewise declined to rely on Pennypackin striking late-served "Amended Final Invalidity Contentions":
According to the Court's Scheduling Order, Defendants must serve their Final Invalidity Contentions to Chervon by December 17, 2020, which they did so. D.I. 37 if 7(f). On July 27, 2022, Defendants served their Amended Final Invalidity Contentions. D.I. 316 at 1; D.I. 319 at 1. Defendants did not request leave from the Court to amend their Final …
Judge Noreika is well known at this point for requiring real, substantive meet-and-confers on claim construction. In multiple cases, she has directed parties to further meet-and-confer after finding their initial efforts insufficient.
She issued another such order this week, this time directing the parties to have what appears to be a supervised meet-and-confer, in person in the courtroom:
ORDER . . . The parties did not comply with the Court's February 13, 2023 Oral Order requiring a good-faith meet and confer. Instead, the parties spoke for just 20 minutes about 10 disputed terms, as well as "hearing logistics" and a proposal by MarkForged to request deferral of certain claim constructions until dispositive motions. There is no breakdown indicating …
Parties in D. Del. patent actions frequently stipulate to adjustments of the case schedule, and these typically go through without any issue. So it always catches my eye when a stipulated stay is denied.
In Zogenix, Inc. v. Apotex Inc., C.A. No. 21-1252-RGA (D. Del.), and two related actions, one of the defendants had moved to dismiss one of the asserted patents in a related action, and the plaintiff had moved to amend its complaint to assert additional patents and join additional parties. The motions were filed in September and November, 2022, and remain pending.
The parties in the three actions stipulated to consolidate the actions for the purposes of discovery, and to stay the consolidated action until resolution of the motions to dismiss and amend.
Judge Andrews denied the motion, ordering that the parties instead move forward as if the motions were resolved in the broadest way:
ORAL ORDER: The Stipulation to Consolidate and Stay Case . . . is DENIED. The Court is not willing to stay the cases. The discovery deadlines in the two earlier cases . . . will not be extended. The parties should proceed as though the motion for leave to amend . . . will be granted and the motion to dismiss . . . will be denied. Ordered by Judge Richard G. Andrews on 3/1/2023.
We've noted before that stipulations to stay the entire case can be iffy, and Judge Andrews has previously rejected an attempt ...
A lot of things can go wrong in law. Keeping track of the labyrinthine tangle of laws, local rules, standing orders, and judicial preferences, is a daunting task. Checking and re-checking documents to make sure they comply with all of these rules is enough to make a person a bit neurotic. But, with the aid of experience and some hard lessons, you eventually come to grips with things and develop a certain comfort with the systems hard edges.
Until of course you stumble upon something new to worry about, and then you get the shakes all over again.
AI-Generated, displayed with permission
To that end, I submit to you this footnote in Cipla USA, Inc. v. Ipsen Biopharms., Inc., C.A. No. 22-552-GBW-SRF (D. Del. Mar. 1, 2023) (R&R), on the dangers of not checking your links:
In support of this assertion, Ipsen cites an "Update to Information Regarding Medicare Payment and Coding for Drugs and Biologics," dated May 18,2007. (D.I. 23 at 4 n.4) A document by the same name and having the same date is referenced in Cipla's complaint. (D.I. 1 at [Paragraph] 5c) To the extent that these documents are, in fact, the same, the court may consider them as "matters incorporated by reference" into the complaint without converting the motion to dismiss to one for summary judgment. See Kickjlip, Inc. v. Facebook, Inc., 999 F. Supp. 2d 677, 682 (D. Del. 2013). In this case, however, there are different hyperlinks associated with the document in the complaint and in Ipsen's reply brief. (Compare D.I. 1 at, 5c with D.I. 23 at 4 n.4) The hyperlink in the complaint functions, whereas the hyperlink in the reply brief does not. Ipsen does not set forth any basis for the court's consideration of the material, and the court cannot independently verify whether this material is the same as the document referenced in the complaint due to the defective hyperlink.
Id. at 7 n.4.
Oof. To Summarize here -- the defendant moved to dismiss and cited a document that was linked in, but not attached to, the complaint. The Court declined to consider it, because the link in the brief was ...
Judge Wolson is a visiting judge with a number of patent cases here in Delaware. His procedures tend to differ a fair bit from Delaware judges in some areas (particularly those involving redactions sealing).
In February, he implemented an interesting new procedure for summary judgment motions. His new procedure requires parties to serve—but not file—their statement of fact in support of the motion 28 days in advance, so that the opposing party can respond on a fact-by-fact basis. The party serving the motion can then respond to that response. The resulting combined statement of facts is then filed with the brief.
This process is intended to result in a single statement of facts that includes the parties' opening, answering, and reply positions as to each fact, in that order and in one document for easy readability:
The result of this process will be a single, consolidated statement of facts that permits Judge Wolson to see each party’s position on each factual assertion in one place. For example, ...
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