Happy Thanksgiving! Don't forget that both Thursday and Friday of this week are court holidays.
There haven't been a lot of Court orders and opinions in the last week or so, and we've been running a bit short on topics (we're always open to suggestions). Now seems like a good time for a blog break. See you next week!
Both Chief Judge Connolly and Judge Williams require parties to rank their summary judgment motions. This is an effort to deter meritless summary judgment motions. Upon denying a higher-ranked motion, the Court will automatically deny lower-ranked motions as well.
In other words: You had better be careful when ranking your summary judgment motions. But it can be tricky! Do you put the one with the highest chance of success first, even if it's on an issue you don't care as much about? Or do you rank the tougher SJ motion first because it addresses a critical issue first, to ensure that the Court will at least address it?
And what if a motion is granted, but …
As we've covered in the past, stipulations are hard.
Their very simplicity can lull you into a false sense of security. Their ubiquity obscures their finer details.
(Eds. Note -- this was meant to be a haiku, but I couldn't make it work. Please prepare your own legal haiku for submission to our annual contest.)
Judge Burke's decision in CosmoKey Solutions GmbH & Co. KG v. Duo Security, Inc., C.A. No. 18-1477-JLH-CJB (D. Del. Nov. 15, 2024) (Oral Order), deals with a stipulation that encompassed more than intended.
The case began life under the watchful gaze of Chief Judge Connolly. Like all patent cases assigned to him at the time, the scheduling order …
Parties sometimes think that a stay pending an instituted IPR is almost a given. But while a stay is more likely than not, it's not a sure thing.
Last month we saw a even a stipulated stay pending IPR denied by visiting Judge Choe-Groves (in the time since, by the way, that denial has held firm, and the Court issued a scheduling order).
This week Judge Fallon denied a stay pending an instituted IPR in North Atlantic Imports, LLC v. Loco-Crazy Good Cookers, Inc., C.A. No. 23-999-GBW-SRF (D. Del. Nov. 19, 2024). The Court noted that there were non-patent claims …
Today's post will be the final one for a bit on the subject of indefiniteness rulings at Markman. Long ago, we wrote this post cataloguing which Delaware judges allowed the parties to argue indefiniteness during Markman and which deferred the issue until summary judgment.
At the very bottom of that post, we had a note that Judge Williams had invited indefiniteness argument at a hearing, but we have not yet noted a case where he actually found a claim indefinite.
Until today.
Last week, Judge Williams issued his claim construction ruling in Cisco Sys. Inc v. Ramot at Tel Aviv Univ. Ltd., C.A. No. 21-1365-GBW (D. Del. Nov. 12, 2024). In that decision, in addition to construing several terms, Judge Williams found several indefinite:
The Court holds that claims 45-47 and 49-54 of the '998 patent are "invalid for indefiniteness [as] [those] claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention." Nautilus, 572 U.S. at 901. Specifically, with respect to those preceding claims, "the problematic limitation" is the "wherein the N bits of the N bit digital input data word are mapped" clause, which "although not directed to a function performed by a user[,] . . . appear[s] in isolation and [is] not 'specifically tied to structure."' KOM Software, No. CV 18-160-WCB, D.I. 116 at 34 n.6.
Id. at 15-16.
The details are pretty straightforward and not worth recounting here, but there can no longer be any doubt that Judge Williams will kill a claim at Markman.
There has been a lot of political talk lately about § 230 of the Communications Decency Act, 47 U.S.C. § 230, which provides immunity for certain kinds of claims related to user-generated content on social media. It's a hot-button, IP-adjacent topic.
Judge Williams today addressed the question of whether § 230 operates to shield Meta / Facebook from the effects of its algorithms. The case is between former Governer Mike Huckabee and Meta, and involves privacy, publicity, false light, and unjust enrichment claims related to ads Facebook hosted that suggested Governor Huckabee was associated with a CBD product:
[Plaintiff claims that t]o promote …
You don't have to depose the other parties' experts, and strategically, sometimes it can make sense not to. If you have a good sense that their report(s) are flawed and they may use the deposition to try to add key information to the record (regardless of your questions), it may make sense to avoid the deposition altogether.
That strategy is less common but certainly not unheard of—assuming trial counsel is confident in their positioning and ability to …
Deposition errata is often the source of mild-moderate disagreements. It's not uncommon to see complaints that an errata is really just an attempt to reform otherwise damaging testimony, rather than a mere correction of a misheard word. Occasionally the issue will be large enough to warrant a discovery dispute.
Less common, but not unheard of, is a dispute over the accuracy of a transcript of a Court hearing. To begin, unlike in depositions, the Court reporter normally does not formally request errata except in the case of trials. You get what you get and anything after that is in something of a procedural gray area. To the extent the parties do have errata disputes, there is no clear route to …
This is something we've talked about before, but the blog is always picking up new readers, so I figured it's worth revisiting for the newcomers.
Yesterday, Judge Noreika denied a stipulation to extend the page limits for the briefing on a motion to dismiss from the default 20/20/10 (opening/answering/reply) to 30/30/10:
ORAL ORDER re 16 Stipulation Regarding Motion to Dismiss - IT IS HEREBY ORDERED that the stipulation is DENIED. The Court will not extend the page limits. ORDERED by Judge Maryellen Noreika on 11/12/2024. (dlw) (Entered: 11/12/2024)
Advanced Accelerator Applications USA, Inc. v. Curium US LLC, C.A. NO. 24-1161-MN, D.I. 17 (D. Del. Nov. 12, 2024).
The stipulation had sought additional pages …
The local rules have long admonished parties not to "reserve material for the reply brief which should have been included in a full and fair opening brief." D. Del. LR 7.1.3(c)(2). Although the rule provides no penalty, numerous cases have held that arguments first presented in a reply are waived.
A separate line of cases, unrelated to the Local Rule, similarly hold that arguments presented solely in footnotes are forfeit.
Today's case dealt with a party who dared to secure his pants with both belt and suspenders, as my grandpa would say. Nevertheless, they found themselves undone.
Defendants in Novartis Pharms. Corp. v. MSN Pharms. Inc., C.A. No. 20-1395-RGA (D. Del. Nov. 8, 2024), moved to exclude the plaintiff's infringement expert on various grounds. One such ground was included only in a footnote in the opening brief (the "belt"). The Plaintiff responded in their answering brief, however, and Defendants expanded in the reply, devoting a page or so to the issue (the "suspenders").
The question for Judge Andrews was whether raising the issue in both briefs was sufficient to avoid a forfeiture. It was not.
Finally, in a footnote at the end of their opening brief, Defendants argue Dr. Park should be excluded from testifying because Novartis falsely claimed it did not have possession of Triclinic's glassy solid when requested by Defendants on October 6, 2023. Arguments in footnotes are forfeited. It does not matter that Novartis responded and Defendants addressed the issue more fully in their reply brief. Arguments first made in reply briefs are forfeited.
Id. at 7.
