A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: September 2024

After Bifurcating Trial, Court Dismisses Portions of Summary Judgment and Daubert Motions That Go to Later Phase

Andrew E. Russell, Sept. 30, 2024
Summary Judgment Bifurcation

A Bifurcated Apple
AI-Generated, displayed with permission

Earlier this year Judge Hall bifurcated the upcoming patent trial in Apple Inc. v. Masimo Corporation, C.A. No. 22-1377-JLH (D. Del.), keeping Apple's patent claims, the related invalidity and unenforceability defenses, and a portion of a Walker Process anti-trust counterclaim—but moving other claims to a later trial:

ORAL ORDER: Having held a case management conference on March 20, 2024, . . . IT IS HEREBY ORDERED that a 5-day jury trial is scheduled beginning October 21, 2024, with a pretrial conference scheduled for October 4, 2024 at 11:00 AM in courtroom 6D. The remaining claims and defenses in C.A. No. 22-1377 and C.A. No. 22-1378 shall be joined and/or bifurcated for trial such …
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Court Denies Defendant's Request to Stay Patent Action After Lead Counsel's Head Injury

Andrew E. Russell, Sept. 27, 2024
IPR Stay

Best wishes and get well soon.
Niklas Ohlrogge, Unsplash

Visiting Judge Murphy decided a stay motion in a patent action yesterday, and included language that could be helpful to any patent plaintiffs who are opposing an early stay.

In Ignite Enterprise Software Solutions, LLC v. NGData, US Inc., C.A. No. 23-1209 (D. Del.), the defendant moved for a 30-day stay after its lead counsel suffered a head injury in a car accident.

The Court moved shockingly fast (for a busy Court), requesting that the plaintiff respond within two days, and then ruling on the motion the same day the plaintiff responded—just two days after the initial paper.

The Court denied the stay due to prejudice to the patentee:

Defendant seeks a 30-day …
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Patent Claims Withdrawn Just Minutes Before Trial Are Gone for Good

Andrew E. Russell, Sept. 26, 2024
JMOL Trial

"Your honor, we'd like to drop most of our claims." "Ok, but you're not picking them back up." AI-Generated, displayed with permission

True D. Del. patent litigators know that, no matter which side you're on, you're going to have to narrow your claims and defenses before trial. It's just unwise and unworkable to go into a five-day trial with 100 claims, or with 30 prior art references and hundreds (or millions) of potential obviousness combinations. There isn't time to cover it all.

That said, sometimes the parties in patent cases delay case narrowing for a long time. And while the Court will often narrowing, it doesn't do that in every case. Instead, judges sometimes take the approach that …

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Court Denies Request for Discovery of Git / Version Control History for Source Code

Andrew E. Russell, Sept. 25, 2024
Source Code Discovery Dispute

Source Code
Markus Spiske, Unsplash

This is an issue I've seen come up a few times, but I don't know of another opinion on it offhand.

Source code is typically managed using a source control or version control system, typically (but not always) using a program called git. Git is a command-line program that allows developers to manage different versions of source code in a tree structure called a "repository."

A developer can create a "branch" within the repository, for example, to work on a specific feature. As they work on aspects of the code for that feature, they can "commit" them, along with a message about the purpose of their revisions. When they are done working on that feature, …

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Judge Bryson Denies Stipulation That Sets Dispositive Motions Too Close to Trial

Andrew E. Russell, Sept. 24, 2024
Case Dispositive Motions Stipulation

Denied
AI-Generated, displayed with permission

It seems fairly well known that while parties can freely stipulate to most kinds of schedule adjustments in the District of Delaware, changing the dispositive motion deadline is a danger zone that might result in the denial of your stipulation—or worse, such as the loss of your trial date.

But people often do it anyway. Yesterday, visiting Judge Bryson denied a stipulation that would move the case dispositive motions deadline to April 25, 2025 for a trial starting July 14, 2025.

Assuming the parties use the briefing schedule under the local rules, the Court will not have a full set of papers until May 16, less than 2 months before the first day of trial. No …

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Motions In Limine ≠ Second-Chance Summary Judgment Motions

Andrew E. Russell, Sept. 23, 2024
MILs Motions In Limine

Apples and oranges
Gowtham AGM, Unsplash

The Court has held in the past that motions in limine cannot be used to bring stealth summary judgment or Daubert motions after the deadlines for those motions (we first posted about this issue over four years ago—wow).

Last week, this issue came up again, this time with a party overtly asking the Court for two additional MILs, beyond the default three, specifically to address summary judgment issues. Unsurprisingly, the Court did not grant the motion:

Defendants seek . . . permission to file two motions in limine beyond the three motions in limine permitted by the Scheduling Order. . . . In Defendants' words: "Two requests will seek to exclude certain exhibits and testimony …
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Notes from the FCBA's 2024 Delaware Bench and Bar: Two New D. Del. Judgeships Incoming?

Andrew E. Russell, Sept. 20, 2024
DED

Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Andrew Russell, CC BY 2.0

I attended the 2024 Delaware Regional Federal Circuit Bench and Bar today. It was a great program with many judges speaking on panels, plus an interview with Judge Dyk of the Federal Circuit and remarks by Senator Chris Coons. Here are some notes about interesting points from the conference, in case you missed it.

New Judges for the District of Delaware

Of particular interest to District of Delaware attorneys (and litigants) is the great news about two potential new judges. Senator Coons relayed the news—which we here at IP/DE had not picked up on—that the U.S. Senate has unanimously approved the JUDGES act …

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Mavexar Hearings: Court Orders Attorney Representing Stay-at-Home Mom's NPE to Preserve All of His Computers In Their Present State for Third-Party Investigation

Andrew E. Russell, Sept. 19, 2024
Mavexar

AI refuses to draw a judge without an old-school judicial wig. This is the best I could do.
AI refuses to draw a judge without an old-school judicial wig. This is the best I could do. AI-Generated, displayed with permission

Chief Judge Connolly held a second Mavexar-related hearing yesterday, this time in Swirlate IP LLC v. Quantela, Inc., C.A. No. 22-235-CFC (D. Del.). This was after the one in the Backertop action that we just posted about.

Chief Judge Connolly questioned both the out-of-town attorney who represented Swirlate as lead counsel in the action, and the sole member of the Swirlate NPE

The Court addressed several topics with the attorney, including:

  • Gaps and redactions in the court-ordered document production, which was supposed to include communications with his client.
  • Swirlate (the NPE) and its …
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Mavexar Hearing Update: Court Calls Out Attorney's "Quite Remarkable" Line of Questions as Defending Mavexar Rather Than His Client

Andrew E. Russell, Sept. 18, 2024
Mavexar

The hammer arrives
AI-Generated, displayed with permission

There was another hearing this morning in the still-ongoing Mavexar saga, this time in Backertop Licensing LLC v. Canary Connect, Inc., C.A. N. 22-572 (D. Del.).

If you recall, this is the case where the sole member of the patent assertion LLC is a litigation paralegal from Texas who was the wife of a Mavexar attorney.

She appeared in one of the first Mavexar hearings back in November 2022. She later accused the Court of "mansplaining" and "gender harassment and intimidation," and she refused to appear in person to testify a second time, incurring a $53,000 fine. She appealed, and the Federal Circuit affirmed.

Since the last hearing, her husband …

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Judge Andrews Provides Some Guidance on Motions to Strike at the Summary Judgment Stage

Andrew E. Russell, Sept. 17, 2024
Motion to Strike Summary Judgment

Lightning Strike
Brandon Morgan, Unsplash

Sometimes summary judgment motions or responses end up involving arguments that material should be struck or not considered by the Court. A common question is whether, in making that kind of argument, a party needs to bring a separate motion, or if they can just make it as part of their summary judgment briefing—in an (ugh) footnote, for example.

The answer varies by judge. But we got some guidance from Judge Andrews in his Acceleration Bay opinion last week (which we also wrote about yesterday).

The opinion addressed a motion for summary judgment barring the plaintif from asserting the claims based on a prior contract that contained a non-assertion clause. The plaintiff responded by citing …

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