On Monday, we posted about how the Court had denied a motion to bring a discovery dispute, because a 12-minute meet-and-confer was not long enough.
If you were curious, as I was, about how long of a meet-and-confer would be sufficient, we now have a data point. The parties re-filed their letter after conducting an additional19-minute meet-and-confer, and the Court granted their motion and permitted them to bring the dispute to the Court.
So the data points we have so far are that 12 minutes is insufficient, and that two meet-and-confers totaling 31 minutes(12+19) were sufficient.
There is obviously a range of times in between those numbers that might or might not …
Patent and antitrust law are awkward bedfellows. Antitrust law is all about encouraging competition by limiting the the use of market power, while patent law aims to encourage innovation by eliminating competition. The counterclaim writes itself.
Judge Burke had a decision the other day dealing with an aspect of antitrust law that appears to be a first in Delaware.
The plaintiffs in 10x Genomics, Inc. v. Curio Biosciences, Inc., C.A. No. 23-1375-MN, were the patentee and exclusive licensee. They had apparently been on a bit of a litigation spree of late, and the defendant was the latest in a series of suits. The defendant counterclaimed under section 2 …
When people say that D. Del. is "against litigation funding," they imply that the Court has some kind of general bias against parties who use litigation funding. That's wrong. I've never seen a Delaware judge dislike or rule against a party because the party used litigation funding. And the Court as a whole is certainly not biased against plaintiffs (or defendants), funding or no funding.
With all of that said, I thought it was worth noting that Judge Burke recently ordered production of litigation funding material to the extent it related to the value of the patents.
After reviewing litigation-funding-related documents in camera, he ordered production of those that relate to the value of …
Old timers remember RainDance Techs., Inc. v. 10X Genomics, Inc., Civil Action No. 15-152-RGA, 2016 U.S. Dist. LEXIS 33875 (D. Del. Mar. 4, 2016). After the appendix of forms was banished from the Federal Rules of Civil Procedure, Judge Andrews' opinion in Raindance was among the first in the nation to hold that complaints alleging infringement had to do more than simply list the patent and the product as in the old Form 18.
For a couple years it was the citation of choice in the district for motions to dismiss, with every defendant arguing that the complaint lacked sufficient detail relating their product to the asserted patent claims.
Will they use a phone like this? No. But I couldn't find a good image for "Zoom meeting where everyone but that one person has their camera off."Quino Al, Unsplash
We haven't had many posts yet on the Court's newest magistrate judge, Judge Tennyson. But we got an interesting data point on Friday when the Court ruled on a motion to schedule a teleconference to resolve a discovery dispute.
In Inari Medical, Inc. v. Inquis Medical, Inc., C.A. No. 24-1023-CFC-EGT (D. Del.), Chief Judge Connolly referred all discovery disputes to Judge Tennyson. Shortly thereafter, the parties submitted a form motion following her guidelines to initiate a discovery dispute.
Claim construction in this case was originally set for 2020—before the parties stipulated to cancel it.Kelly Sikkema, Unsplash
Yesterday, Judge Hall granted a post-trial JMOL motion in Taiho Pharmaceutical Co., Ltd. v. MSN Laboratories Private Ltd., C.A. No. 19-2342-JLH (D. Del.), finding no infringement as a matter of law.
The motion resolved a relatively straightforward claim construction issue: what the word "purity" means in the claims.
The patentee said it meant chemical purity, while the accused infringer argued it meant "polymorphic" purity. The patent as a whole is directed towards crystal forms of a drug, and discussed purity of the crystal form—"polymorphic" purity—but also mentions chemical purity. The patenteee agreed that, if "purity" means polymorphic …
Unlike motions for reconsideration (or reargument, as we call them in Delaware), the local rules do not provide any particular guidance on what such a motion should like like, or the standard that needs to be met. I've often seen them criticized as essentially stealth motions for reconsideration designed to circumvent the rigid requirements of such a motion.
I've never done a full analysis of the likelihood of such a motion being granted (hope for a slow news day next week) but my guess is that most of them go down like last week's ruling in Aortic Innovations, LLC v. Edwards Lifesciences Corp., C.A. No. 23-258-JPM, D.I. 222 (D. Del. Jan 17, 2025).
In that case, the parties (weirdly) filed competing motions to extend the fact discovery deadline on the same day, presenting slightly different proposed schedules that allowed additional time for the completion of depositions and whatnot. Visiting Judge McCalla resolved the motions and adjusted the schedule in a brief oral order consisting only of the relevant dates:
ORDER SETTING DISCOVERY SCHEDULE: Fact Discovery Deadline due February 27, 2025; Initial Expert Witness Disclosures Due April 3, 2025 . . . .
After the Court extended the schedule, however, the Defendant issued several new subpoenas to third parties. Plaintiff then moved for an order clarifying that the extension only allowed for the completion of existing discovery, and not for the service of new requests. The main argument was that both parties' motions had focused on the time necessary to complete the existing discovery, rather than the need for additional requests.
Judge McCalla denied the motion, finding no ambiguity requiring clarification in the prior order amending the schedule:
In its Order Setting Discovery Schedule, the Court extended the fact discovery deadline to February 27, 2025. Plaintiff argues neither party requested an extension for the purpose of serving additional fact discovery. However, the Court used its “broad discretion” to grant the Parties’ requests so that the Parties could complete discovery as a whole. A fact discovery deadline is just that: a deadline to complete all discovery promulgated by the Parties.
To the extent the Order Setting Discovery Deadline is “ambiguous or vague” the Court makes clear: the Order Setting Discovery Schedule only established a deadline of completion and did not set out a cap on that discovery
Id. at 3-4 (internal citations omitted).
The order is additionally interesting for having one of the few recitations for the standard in moving to clarify.
Settlement agreements often start to come apart at the seams during negotiations, so it helps for attorneys who handle such negotiations to know when the agreement will be binding and when it will not.
Yesterday, the Court issued an opinion in Astellas Pharma Inc. v. MSN Pharma. Inc., C.A. No. 23-689-JFB-CJB (D. Del.) discussing what happens when parties reach a settlement agreement but it falls apart before they actually sign.
It started with the basic proposition that, in the abstract, a signed, written agreement is unnecessary:
a signed and executed agreement is not a prerequisite for contract formation unless the . . . “parties positively agree that there will be no binding …
As a child, I was frequently frustrated by the differing rules that governed different houses. My house was a shoes-on place, while most of my friends houses were strict shoes in the bucket at the door affairs (this was the early 90s so carpet was the rule).
It usually also had a splotchy brown pattern so that a spilled root beer might pass without notice. The midwest is a practical place.Jon Tyson, Unsplash
I was instructed to remove my shoes at their doors and respect the primacy of house rules. In other realms, a visiting child brought their own rules with them -- perhaps they would be allowed a later bedtime, additional snack, or the high privilege of a PG-13 movie -- indulgences normally forbidden in my house.
This is one of the many reasons I have always hated choice of laws, and will not write about it in the blog. I will also stealthily delete any Andrew posts on it and assume he won't notice.
Today's post deals with a different sort of visitor, and an interesting wrinkle that I had not considered before.
Rampart IC, LLC v. Egg Medical, Inc., C.A. No. 24-643-JCG (D. Del. Jan. 17, 2025) was assigned to visiting judge Choe-Groves from the Court of International Trade. The defendant, Egg, was a Delaware corporation with its principal place of business in Minnesota (probably carpeted). They moved to transfer the case back to balmy Minneapolis.
One of the Jumara factors that govern transfer in the Third Circuit is the relative congestion in each fora. Typically, this factor favors transfer because Delaware Judges have among the highest (or often the highest) weighted caseloads in the nation.
In denying the motion, however, Judge Choe-Groves ...
This isn't a surprising result, but it's still a good data point on attempting to force a post-COVID remote deposition.
In Etienne Maugain v. FCA US LLC, C.A. No. 22-116-JLH-SRF (D. Del. Jan. 15, 2025), the plaintiffs asked the defendant to take their deposition remotely, rather than in person, or to take the deposition where they reside (offering to reimburse travel costs). They cited cited medical conditions, dependent care obligations and work schedules. The defendant refused, and the parties ultimately brought cross motions to compel an in-person deposition in Delaware, and for a protective order to prevent such a deposition.
In their motion, the plaintiffs apparently dropped their objections on medical and dependent-care …
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