Heads up! As the Court described in a public notice last week, the Hunter Biden criminal trial starts on Monday 6/3.
Just reading the notice, you can tell that the Court (unsurprisingly) expects quite a lot of people to be there. It is setting up the 3rd floor jury assembly room as an overflow room, and is not permitting reporters in the courtroom during jury selection:
Members of the public and media may not be present in the courtroom for jury selection but may listen to those proceedings from the overflow room (3rd Floor Jury Assembly Room).
Courtroom seating for . . . the portions of the trial other than jury selection will be on a …
The Court has developed many methods for curtailing the tendency of litigants to file and argue implausibly large numbers of SJ and Daubert motions. The first, begun long ago when mankind was yet to know fire and all creatures lived in harmony, was page limits. Later, Judge Connolly pioneered the practice of having parties rank their motions. Still further methods take seed, blossom, and wither, each day.
In you can't tell, I've been spending a lot of time in my garden this month. I just got my first plum! (not these).Svitlana, Unsplash
This last month Judge Burke debuted a new approach—"requesting that the parties select one motion each to argue at the hearing.
The parties in the case in question each filed SJ and Daubert motions under the usual page limits. After briefing was complete, Judge Burke issued an order requesting the parties select 80 pages of briefing to actually be argued at the hearing:
The Court needs the parties' help to narrow the issues as to which argument will be presented on July 2. By no later than May 20, 2024, the parties shall meet and confer and file a joint letter with the Court advising of their position (it would be ideal if this were a joint position), as to which of (or which portions of) the 5 pending motions the parties wish to present argument on at the July 2 hearing (and which the Court can simply resolve on the papers). For guidance, the Court can productively prepare for and hear argument on no more than about 80 pages of briefing. After hearing back from the parties, the Court will then advise on which motions/issues it will hear argument on during the July 2 hearing.
The Nielsen Company (US), LLC v. TVision Insights, Inc., C.A. No.22-57-CJB. D.I. 219 (D. Del. Apr. 29, 2024).
The parties ultimately did submit a joint letter selecting the 80 pages of briefing. Judge Burke then issued a follow-up order requiring further narrowing for the hearing:
[T]he Court has further reflected on the issue, in part having after having recently overseen another similar hearing regarding such motions. As a result, it has become clear to the Court that for a hearing on summary judgment and/or Daubert motions to be most fruitful and focused, it makes best sense to require the parties to each select one motion that they will offer argument on to the Court. This will allow for a detailed and focused argument regarding what the parties believe to be their most important motion, and will allow the Court to meaningfully prepare for argument. Therefore, the Court hereby ORDERS that by no later than May 28, 2024, the parties shall submit a joint letter advising the Court of the motion that each respective side selects to be argued at the July 2 hearing.
On one level, it seems kind of silly to devote this much attention to the question of whether the people on your team can browse their phones during a hearing. But on another level, it's important and impactful—particularly for trials, it's essential that the team members who are actually doing the work can communicate, pull up exhibits, take notes, and so on. …
The intersection of patent and anti-trust law is tricky. Like, Boston intersection tricky.
"It used to be a cow-path that avoided a snakepit, but now we let cars use it!"Leon Bredella, Unsplash
Judge Williams had an interesting opinion on the issue last week in Jazz Pharms., Inc. v. Avadel CNS Pharms., LLC, C.A. No. 22-941 (D. Del. May 24, 2024), ruling on a motion to dismiss various antitrust counterclaims. In this ANDA case, Jazz sued Avadel for infringing one of its Orange Book patents. Avadel, however, successfully moved the Court to de-list that patent from the Orange Book grounds that it did not claim a method of use (it was instead directed to a risk mitigation …
Defendants are often (but not always) the ones who just happen to want to move a trial back.AI-Generated
Trial dates in Delaware generally tend to stick, with certain exceptions (e.g., parties moving to extend the schedule, particularly the dispositive motion deadlines).
We saw an example of that this week in International Business Machines Corporation v. Zynga, Inc., C.A. No. 22-590-GWB (D. Del.). There, the defendant tried to delay trial based on schedule issues, an O2 Micro issue, and to permit expert report supplementation based on potential new evidence. The Court didn't go for it:
ORAL ORDER: The Court has reviewed the parties' letters regarding the trial schedule (D.I. 445, 449, 450). Zynga's request to alter the …
Section 101 Motions are common as dirt, and as likely to be trod under the judicial foot (although the last time we checked they had a decent win rate in Delaware).
You lose at least as often as you win, and even if you win there's a fair chance the patentee will get a chance to amend to add in new facts relevant to the analysis -- particularly as to step two's conventionality/inventiveness inquiry.
This weeks decision from Judge Williams in Dish Techs. LLC v. FuboTV Media Inc., C.A. No. 23-986 (D. Del. May 21, 2024), shows us an intriguing third way.
A most unusual posture . . .AI-Generated, displayed with permission
The complaint listed just a bare handful of claims and the Defendant, Fubo, moved to dismiss under 101. The parties fully briefed the motion, and there was even an oral argument before Judge Williams. Judge Williams is historically a bit more likely than most to grant a 101 motion, so perhaps the plaintiff was feeling the heat after that hearing.
So, rather than wait to see how it all panned out, the plaintiff preemptively moved to amend the complaint both to specify more asserted claims, and to add in some allegations about how inventive and unconventional it all was. Fubo called foul (#sportspun) arguing that the proper time to move to amend was before the parties and the Court went to all this trouble, especially when plaintiffs had all the relevant information beforehand and had previously litigated these patents.
Judge Williams, although noting that the request was late, granted the motion to amend:
[T]he Court finds that Dish delayed in seeking leave to amend to assert new allegations for the subset of allegations that are based on facts that Dish knew, or should have known, as of the filing date of the original complaint.
The Court also finds, however, that Dish's delay in seeking leave to amend its complaint to include those allegations was not "undue." When the Court dismisses without prejudice a party's complaint for pleading deficiencies, that party can attempt to re-plead by adding additional factual allegations. Because "delay alone is generally an insufficient reason to deny leave to amend," that party has some leeway in attempting to re-plead by asserting facts that they knew, or should have known, as of the filing date of the initial complaint.
Id. at 5-6 (internal citations omitted)
The court then addressed futility under the usual Rule 15 standard and allowed the amended pleading. More interestingly, the Court addressed the obvious question of ...
Long-time readers can maybe skip this post, as we've discussed this issue before.
But I thought it was worth a post, because it's still something that comes up from time to time. But the court's rulings are clear: You can't redact information from document production just because you think it is irrelevant. You have to produce the documents without redactions.
This came up again this week, this time before visiting judge Murphy. Consistent with our other judges, he rejected the idea of permitting redactions of irrelevant material:
Defendants’ motion to modify the stipulated protective order (DI 52) is DENIED. . . . Defendants were unable to identify any occasion where a district court …
Sometimes I wonder what it might have been like to be on a patent jury in 1840. The claim at issue is 12 words, something like "a machine for curing drunkenness through violent shaking, operated by a crank."
(Eds. note - is that a haiku?)
A be-wigged and mustachioed defense lawyer argues that it was really more of a swivel than a crank, and anyways it was well known in the prior art that drunkenness could be cured by shaking the inebriated patient manually, and thus no patent should have issued.
The jury nods in agreement at these self-evident truths, and then goes on to deliver a verdict after a brief luncheon of organ meat pies. Justice, like lunch, is served.
Those halcyon days are, of course, long gone as evidenced by Judge Andrews' opinion in Shopify Inc. v. Express Mobile, Inc., C.A. No. 19-439-RGA (D. Del. May 17, 2024) (Mem. Op.), which dealt with a claim (one of many) that was 424 words long.
The opinion on the various post-trial motion goes into great detail about the difficulties of presenting a coherent trial on such complicated software claims:
Much of the trial testimony on infringement can only be understood, if at all, with great effort. The claims are very long and complicated. For example, claim 1 of the '287 patent is 424 words long. At trial, Express Mobile divided the claims into four parts, which it color-coded as red, green, gold, and blue. The testimony of Plaintiffs technical expert about how Shopify's system worked was intermingled with references to its meeting, e.g., the "red group of limitations." The testimony at times lacked the usual one-to-one correspondence with the specific limitations in the claims, and that combined with the color-coding means that trying to figure out whether there was sufficient evidence to show infringement is difficult.
Id. at 9 (internal citations omitted).
Given that description, I was surprised to see that the patentee had actually prevailed at trial to the tune of $40,000,000. Judge Andrews apparently agreed because he ...
"Guys, if we write our own opening brief on their issue, we'll get more than twice the page limit! The Court loves extra briefing, right?"ron dyar, Unsplash
I've had this come up a couple of times lately, and an opinion came out on Friday that addresses it.
Here is an example scenario: Each side has a discovery dispute. The Court sets a briefing schedule with opening, answering, and reply 3-page briefs. Can each side spend half of its opening brief pre-briefing the other side's issues? Should they?
Judge Fallon resolved this on Friday with a clear "No". You wait for the other side to file their brief, and then respond:
If you file a motion to dismiss and it's contingent on resolution of a claim construction issue in your favor, you're at risk of being denied. We saw that yesterday in a case before Judge Hall, where she denied a motion to dismiss in advance of the Markman hearing:
ORAL ORDER: Having been reassigned this case, having reviewed the briefing filed in connection with Medacta's pending Motion to Dismiss Count III (regarding infringement of the '678 patent) for Failure to State a Claim (D.I. 12 ), and it appearing that the outcome of the Motion depends on the Courts claim construction of a particular term, and in light of the fact that claim construction disputes are …
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
