A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: November 2024

Reminder That Monday is a Federal Holiday, and Also That CM/ECF May Be Down

Andrew E. Russell, Nov. 8, 2024
CM/ECF PACER

Veterans Day
Chad Madden, Unsplash

Monday is Veterans' Day, a federal holiday. Keep that in mind if you have dates calendared for Monday—they may move under FRCP 6.

Of course, if you have a hard November 11, 2024 deadline set in, for example, a scheduling order, that deadline does not move. So also be aware that CM/ECF is also scheduled to be down until 5pm on Monday:

CM/ECF 1.8.1 Update
CM/ECF WILL BE UNAVAILABLE FROM 9 A.M. ON SUNDAY, NOVEMBER 10th, . . . UNTIL 5 P.M. ON MONDAY, NOVEMBER 11th, 2024
The U.S. District Court for the District of Delaware will upgrade its CM/ECF system to version 1.8.1 starting at 9:00 AM on Sunday, November 10th 2024. Please note that CM/ECF will be unavailable, as outlined above, during the upgrade.

To the extent you have a filing due Monday, now might be a good time to discuss an extension until after the Court's 5pm deadline.

We’ll have no post on Monday, since the Court is closed and there haven’t been a lot of opinions this week - see you Tuesday!

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If You Want to Preserve Your Arguments for Trial, Put Them In the Pretrial Order

Andrew E. Russell, Nov. 6, 2024
Trial Pretrial Order

Danger
Micaela Parente, Unsplash

This may seem obvious to practiced litigators, but the pretrial order is no joke. It defines the scope of the claims and defenses at trial, and omitting things from it is a very risky proposition. Be careful.

That's why parties sometimes end up with ridiculously long pretrial orders—they don't expect anyone to read them front to back, but they want to make sure nothing is waived.

We saw another example of this yesterday in In Re: Ozempic (Semaglutide) Patent Litigation, C.A. No. 22-MD-3038-CFC (D. Del.). There, the defendants intentionally omitted their obviousness-type double patenting invalidity defense from the pretrial order, in light of a recent Federal Circuit case clarifying the rules …

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Clickbait's Revenge

Nathan R. Hoeschen, Nov. 5, 2024
101

Not so long ago, I wrote a particularly click-baity post noting that Judge Williams had granted every single 101 motion he'd been presented with since joining the Court.

With the election and all, its a bit of a slow legal news day so I thought I'd give it an update and see if our second newest judge was keeping his streak alive.

Its really hard to find a picture of a batter missing
Its really hard to find a picture of a batter missing Hudson Graves, Unsplash

Unsurprisingly, no.

In the 20 months or so since we wrote that article, Judge Williams has resolved a further 10 101 motions, bringing his total to 13. The overall breakdown is:

  • 7 - Granted (all challenged claims ineligible)
  • 4 - Denied (no …
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Have Patent Case Referrals to Visiting Judges Slowed?

Andrew E. Russell, Nov. 4, 2024
Congestion DED

ChatGPT comes through again...
ChatGPT comes through again... AI-Generated, displayed with permission

At the FCBA's 2024 Bench and Bar, some of the speakers mentioned that referrals to visiting judges referrals to should be slowing. I've noticed that that seems to be correct — it feels like there have been fewer referrals to visiting judges lately.

Some basic Docket Navigator searches seem to confirm it. I found zero new referrals to visiting judges in the last three months (not counting related-case referrals). That's the longest gap we've had this year, after batches of visiting referrals in January, February, April, July, and on August 1. But Docket Navigator also says that there were even longer gaps last year, including one from January - May and another …

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Patentee's Delay in Moving to Amend Infringement Contentions Costs Them the Opportunity to Add 40 Accused Products—Even Though Fact Discovery Has Not Ended

Andrew E. Russell, Nov. 1, 2024
Accused Products Stay Pending IPR

The apparent state of the patentee's case after the Court's decision.
The apparent state of the patentee's case after the Court's decision. Jason Mavrommatis, Unsplash

Before you get too excited, defendants, this case involved a scheduling order using Judge Connolly's form, which provides only a single round of infringement and invalidity contentions, and explicitly requires good cause to amend.

Most District of Delaware scheduling orders include two rounds of contentions (initial and final), with the second round typically coming around the close of fact discovery. It is unlikely to be as difficult to amend in cases like those.

Regardless, I thought this was an interesting result worthy of a post. In Cognipower LLC v. Fantasia Trading, LLC, C.A. No. 19-2293-JLH-SRF (D. Del.), the Court stayed the case …

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