I couldn't find a picture for this. Just imagine each leaf is an individual claim construction oral order.Erol Ahmed, Unsplash
I've noticed that, since November of last year, Judge Burke has been issuing claim construction opinions in some cases in the form of a series of oral orders on the docket, rather than a formal memorandum opinion or an order with footnotes. I thought I'd flag this so that people know what may happen if you have claim construction in a case before Judge Burke.
I first saw the Court construe terms via oral orders on the docket in November 2023, in The Nielsen Company (US), LLC v. TVision Insights, Inc., C.A. No. 22-057, D.I. 140-141 ( …
(Eds. Note - Andrew actually knows how the website works, so he could probably stop me)
AI-Generated, displayed with permission
Today's case is RyanAir DAC v. Booking Holdings Inc., C.A. No. 20-1191-WCB, D.I. 399 (D. Del. Aug. 7, 2024). For those unfamiliar, RyanAir is sort of the Irish version of Spirit airlines, although I believe they represent a significantly less wintry ring of hell (I understand they do not charge extra for a seat that did not previously contain an incontinent cat). Booking is a third-party website for booking airfare and accommodations -- similar to Expedia for our American readers.
Apparently, it was undisputed that Booking paid contractors to scrub RyanAir's website via screengrabs to get prices to post on their site. RyanAir sued, alleging that this amounted to a violation of the Computer Fraud and Abuse Act ("CFAA") because, in collecting the screencaps, Booking and its contractors "intentionally accessed a computer without authorization or exceeded authorized access, and thereby obtained information from any protected computer."
So I mean, its pretty close to IP.
The issue was that RyanAir's website was, unsurprisingly, open to the flying public. They ran various anti-spyware measures to prevent bots from scrubbing their website for prices and blacklisted known bots, but any normal person was free to peruse at their leisure. The dispute thus centered on whether running bots to grab the prices, in contravention of terms of service and in an active attempt to circumvent the security measures, constituted access to the website "without authorization." Judge Bryson found that ...
It can be risky to stipulate to change the deadline for dispositive motions, particularly for the reply brief, because it cuts short the Court's time to resolve those motions.
We've talked about this before, including in our guide to stipulations. But I think it's worth noting again, given that it popped up twice within the past week.
In both instances, the parties stipulated to move the reply dispositive motion deadline, while keeping the pretrial conference deadline—thus shortening the Court's time to resolve case dispositive and Daubert motions.
Likewise in both instances, the Court said no, but gave the parties some options.
As to the first stip, Magistrate Judge Burke actually suggested an abbreviated summary …
Alice ponders the internet of thingsAI-Generated, displayed with permission
Last week in Ignite Enterprise Software Solutions, LLC et al. v. NGData, US Inc. and NGData N.V., C.A. 23-1209 (D. Del. Aug. 2, 2024), Judge Murphy dinged defendants for stale citations, including failing to cite recent Federal Circuit precedent on the level of detail required in patent pleadings.
We flagged the case that this Court called the "most recent and most relevant Federal Circuit authority" back when it came out: Bot M8 LLC v. Sony Corp. of Am., C.A. No. 2020-2218, 2021 U.S. App. LEXIS 20624 (Fed. Cir. July 13, 2021).
Analysis of Every Claim is Not Required in the Complaint
"By careful review of literally just the face of the patent, we have determined that the conception date is no later than the 2/3/2017 filing date. You're welcome."AI-Generated, displayed with permission
I admit, sometimes I write about things because I want to be able to find them next time I need them. This is one of those posts.
As we've discussed before, most patent cases involve an interrogatory to the patentee asking for the date of conception. Patentees often give a low-effort initial response along the lines of "no later than x," where x is the date of filing or some other easy-to-identify date. Then they wait to see whether they need an earlier date, and supplement if so.
This has two benefits for the patentee: (1) it makes it hard for the accused infringer to weigh the relative merits of the prior art, because it has to hit a moving target, and (2) it's super easy, because the patentee doesn't have to review any of the materials. Thus, it's a common response.
The Court has rejected this response in the past, including the idea that "[a patentee] has no obligation to investigate whether the patent-in-suit is entitled to an earlier priority date at least until Defendant has provided its invalidity contentions." The Court in that transcript forced the patentee to actually respond to the interrogatory—making it a handy transcript for accused infringers.
There's a patent trial starting on Monday in Ferring Pharmaceuticals Inc. v. Finch Therapeutics Group, Inc., C.A. No. 21-1694-JLH (D. Del.), and filings are flying back and forth across the docket this week. The Court's order on motions in limine included this line, which piqued my interest:
To say that the Court is troubled by the occurrences to date would be an extreme understatement.
What was so troubling? It's tough to decipher exactly what is going on from the docket, which is fragmented and redacted. But it has to do with the parties' actions related to an inventor of certain of the asserted patents.
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