A Blog About Intellectual Property Litigation and the District of Delaware


Jury Trials Are Back (Sort of)

Jeff Castellano, July 7, 2020
Jury Trials COVID-19

Just before the July 4 holiday, Chief Judge Stark provided some much-anticipated guidance regarding the reinstatement of jury trials in the District of Delaware after the current moratorium expires on July 31, 2020.

In a July 2, 2020 order in Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, C.A. No. 17-1390-LPS-CJB, Judge Stark told the parties that he had spent "countless hours" meeting with experts and stakeholders about restarting jury trials in his capacity as Chief Judge, and that the Court was "undertaking extensive efforts to be ready to resume jury trials in August, if it is possible to do so safely." With that background, he outlined the details of how the jury trial in the Sunoco case will proceed on August 3, 2020.

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§ 101 Denial Based on Representations in Complaint and Claimed Features

Andrew E. Russell, July 6, 2020
MTD § 101

In a brief § 101 opinion today, Judge Andrews denied a MTD based solely on Alice step 2. He relied primarily on allegations in the complaint that various claimed features of the invention were not routine or conventional:

Plaintiff . . . alleges in its amended complaint that the [asserted] claims incorporate “inventive concepts that were not well-understood, routine, or conventional at the time” of invention. . . . For example, the amended complaint alleges that some claims teach ways of displaying performance parameters so that users of both live and archived classes can compete with one another. . . . The amended complaint alleges that these functionalities were nonroutine and unconventional at the time of the invention and helped …
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Court Posts Public Dial-In for Virtual Bench Trial Starting Today

Andrew E. Russell, July 6, 2020
Virtual Trial Bench Trial

Gavel
Gavel, Bill Oxford, Unsplash

Judge Andrews is holding a virtual bench trial in a contract action today. The Court posted a dial-in for public access:

Remark: The public may access the Bench Trial scheduled to start 7/6/2020 by dialing the following phone number: 571-353-2300, then enter 792973273. The dial-in information provides listening capabilities only. (crb) (Entered: 07/06/2020)

Judge Andrews set forth his reasoning for holding a virtual trial in an order in June:

I had a teleconference with the parties on June 5. I suggested a virtual trial. I did not think it was fair for one side to have lawyers in the courtroom while the other side did not. A virtual trial (by which …
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Judge Stark Gives Insight Into 2020 Trial Schedule

Jeff Castellano, June 30, 2020
LPS COVID-19

In two recent oral orders, Chief Judge Stark provided some insight into how he is scheduling bench trials in 2020. In both cases, Judge Stark indicated a willingness to hold "remote" bench trials. While the question of whether and how jury trials will proceed in 2020 is still very much open, it appears that Judge Stark is continuing to move forward with bench trials, and investigating practical solutions to problems posed by Covid-related restrictions.

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Judge Stark Dismisses ANDA Case For Reasons that Now Seem Obvious

Andrew E. Russell, June 29, 2020
Paragraph III ANDA

Judge Stark today dismissed an ANDA claim after the defendant converted their ANDA in such a way that it simply did not infringe, and plaintiff was left with no claim and no remedy.

What Is an ANDA? (The Short Short Version)

ANDA cases make up a fair portion of the Court's docket. If you're not already familiar, ANDA cases are brought by patent holders after a drug manufacturer files an ANDA seeking approval to manufacture a generic version of a drug.

As part of the ANDA, if there are unexpired patents listed with the FDA as covering the drug, the manufacturer may certify either that the patents are invalid, unenforceable, or won't be infringed (paragraph IV), or …

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Judges Connolly and Burke Hold That Arguments Omitted from Reply Are Conceded

Andrew E. Russell, June 26, 2020
Litigation Legal Writing

While we're talking about reply briefs—Judge Connolly this month affirmed Judge Burke's conclusion that a defendant had "abandoned" arguments that it set forth in its opening brief, because the defendant failed to further address those arguments in a reply after receiving pushback in the answering brief.

Here is what Judge Burke said:

In its opening brief, Defendants appeared to challenge these claims on two other grounds . . . . However, after Plaintiff pushed back on these issues in its answering brief, Defendants did not further address the issues in their reply brief. . . . Thus, Defendants have abandoned these arguments and the Court will not further address them herein.

Judge Connolly disagreed that such arguments are …

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Responding to Opposing Arguments Isn't "Sandbagging"

David M. Fry, June 25, 2020
Litigation Legal Writing

As Andrew recently explained, the District of Delaware has a longstanding rule against "sandbagging," or saving arguments for a reply brief that should have been in a full and fair opening brief. But not every new argument is sandbagging.

In f'real Foods, LLC v. Hamilton Beach Brands, Inc., C.A. No. 16-41-CFC (D. Del. June 24, 2020), the defendants opposed a permanent injunction on sale of their commercial blenders by pointing out that the plaintiffs presented no evidence that their blender could meet the technical requirements demanded by one of defendants' customers (Dairy Queen).

In reply, the plaintiffs submitted new evidence and argued for the first time that their blenders could be modified to meet Dairy Queen's …

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Motion to Amend Filed Before Deadline Not Untimely

Andrew E. Russell, June 23, 2020
FRCP FRCP 15

The judges' form scheduling orders in D. Del. require deadlines for motions to amend, tracking FRCP 16(b)(3)(a), which says scheduling orders must limit the time to amend pleadings.

In an oral order on Friday, Judge Burke granted a motion to amend an answer that was filed on the day of the deadline set in the scheduling order.

He described how difficult it would be for a party to argue that a motion to amend was untimely when it was filed before the agreed-upon deadline:

It would be the unusual case where a Court had previously determined (at the parties' request) that amendment could be allowed by a certain date without causing harm to the case schedule, and yet …
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"Plausibility" Shows Its Teeth

Jeff Castellano, June 23, 2020
R&R MTD

Judge Burke's exacting standards regarding the sufficiency of pleadings in a patent case were on display in a recent R&R, in which he recommended dismissing indirect and willful infringement claims. This ruling demonstrates that although plaintiffs are not required to prove their case as the pleading stage, they are well advised to bolster their complaint with allegations that link the elements of their claims to specific facts.

The key passages of the 24-page R&R in Midwest Energy Emissions Corp. v. Vistra Energy Corp., C.A. No. 19-1334-RGA-CJB concern what makes an infringement claim "plausible" under the Twombly/Iqbal standard.

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