This report, produced by the Court, is available on the Court's website. I’d encourage our readers to peruse the full report, but we highlight a few interesting statistics and announcements below.
IP Cases Continue to Dominate the Docket
In 2022, there was an increase in jury trials to 19 in the District of Delaware. Patent/IP cases accounted for 44% of all civil filings in the last 7 years and 43% in 2022 alone.
Nationally, patent filings decreased from 4,037 filings to 3,854. In the District of Delaware in 2022, 685 patent cases were filed, a 23.04 percent decrease from the previous year of 890. Delaware is second in the nation, after …
Lawyers, especially patent lawyers, are artists in the medium of obfuscation. Much of the job is finding the fuzzy areas at the edges of seemingly straightforward language and tugging at them to suit your needs. At best, it leads to moments of mad brilliance that Van Gogh might envy.
So it was in the case (fast becoming one of my favorites in the district) of a Markman dispute in Impossible Foods Inc. v. Motif Foodworks, Inc., C.A. No. 22-311-WCB (D. Del. Aug. 15, 2023).
Person, cow, not cow, camera, tvAI-Generated, displayed with permission
The term in question was "non-animal."
As you probably gathered from the caption, the patent covered various fake meats (Facon, Soysauge, Ham-pty promises) with "non-animal" ingredients.
Being naturally averse to spoilers, I read the opinion until I got to the disputed term, and then stopped to ask myself "what could the dispute possibly be?" before peaking into the parties' arguments. I sat there a full 10 minutes before shaking my head and giving up.
As it happens, it was more reasonable than it looks at first blush. Impossible argued for the definition I'd immediately jumped to—not from an animal (or in the parlance of lawyers "derived from a non-animal source"). Motif's position, however was that the particular ingredients had to be chemicals (here, proteins) that were "not naturally present in animals" as opposed to merely not harvested from animals in this instance.
Judge Bryson ultimately sided with Impossible for boring science and law reasons. But game recognizes game, so I felt obliged to call out this impressive little dispute. I hope you readers are as inspired as I was.
Local Rule 7.1.5 governs motions for reargument, sometimes styled as motions for “reconsideration.” As we’ve noted, the deadline to move for reargument or reconsideration can be easy to miss. The deadline is just 14 days after the order or opinion, and there are no CMECF reminders to flag it for counsel.
What Is a motion for reargument?
A request for “clarification” of the Court’s prior order may be interpreted as a motion for reargument/reconsideration. But a motion for reargument is not a do-over. In fact, you cannot rehash arguments you already made—and you cannot make new arguments you could have raised earlier.
As we've covered exhaustively in the past, it's becoming increasingly rare for Delaware Judges to consider indefiniteness at Markman, and it's rarer still to see someone get over the hump and knock a patent out.
AI-Generated, displayed with permission
Judge Andrews, however, is still willing to show a patent who's the boss at Markman (even for a non means-plus-function claim) as demonstrated this week in Genzyme Corp. v. Novartis Gene Therapies, Inc., C.A. No. 21-1736-RGA (D. Del. August 18, 2023).
The term at issue was, unsurprisingly, opaque:
Forms intrastrand base pairs such that expression of a coding region of [a] heterologous sequence is enhanced relative to a second rAAV vector that lacks sufficient intrastrand base pairing to …
When we last wrote about Mavexar, Chief Judge Connolly had held a civil contempt hearing after he ordered the sole member of Backertop, a Mavexar-related LLC, to appear in-person in Delaware and she failed to appear (she instead initiated a head-on challenge to the authority of the Court). She likewise failed to appear for her contempt hearing.
Today, the Court issued its opinion and order, holding the witness in contempt. It handily dispatched with each of the witness' arguments against the hearing.
It easily rejected their first argument—that the Court lacks jurisdiction after the entity, Backertop Licensing LLC, dismissed it's complaint. The Court reiterated the same ruling it made last time.
Next, the Court easily rejected the idea that civil contempt is "meant to benefit the complainant," citing multiple U.S. Supreme Court opinions to the contrary. It also rejected the idea that a party can re-litigate the underlying order in context of a contempt proceeding.
I found the Court's discussion of the alleged Fifth Amendment violation interesting, particularly when the Court attempts to identify exactly which Fifth Amendment right it could possibly have ...
Judge Andrews granted a motion to dismiss on § 101 grounds on Friday in Aviation Capital Partners v. SH Advisors, LLC, C.A. No. 22-1556-RGA (D. Del.).
The case involved a patent that the patent office had determined was patent eligible, after he examiner addressed and ultimately rejected patent ineligibility under § 101.
Judge Andrews was undeterred from re-examining eligibility:
I give no weight to the Patent Office's overall determination that the patent was eligible (which determination the PTO makes either expressly or impliedly for every issued patent), even if the PTO considered the cases being cited here.
* * *
[As to the presence of an inventive concept] I again give …
Often times the hard part of a stipulation is just convincing everyone that they're not secretly giving up the farm. Lawyers are used to looking for hidden hooks in every proffered bite, and it's hard to convince us that this one is just tasty fish. We've all heard some scary store about a stipulation that gave away too much and changed the course of a case.
This is one of those stories . . .
But it turns out fine in the end.
UCB, Inc. et al v. Annora Pharma Private Ltd., C.A. No. 20-987-CFC (D. Del. Aug. 16, 2023), dealt with a patent for an anti-seizure drug compound. The defendants conceded infringement, …
It's not uncommon to see discovery requests and 30(b)(6) topics asking about the location of documents. In fact, up until 2015, Rule 26 specifically provided for this kind of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things . . . .
In 2015, in a (highly commendable) effort to shorten Rule 26, that example was dropped. Now it just reads:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case . . …
An e-mail circulated late last month passing along that Judge Connolly set forth some of his filing preferences at a hearing. I haven't seen the transcript, but I understand he asked local counsel to get the word out (it wouldn't be the first time).
Here is what I heard:
When exhibits are filed with a document, he prefers that they be in separate PDFs, not all in one PDF. Note that the judges vary on this.
When courtesy copies are sent to the Court, the D.I. number should be written on each document.
Thought should be given to how exhibits are presented, i.e. minuscripts are hard to read.
It's always good to know chambers' preferences. I've heard that …
We wrote last week about how Judge Andrews—somewhat surprisingly—declined to lift a stay after the PTAB left just 4 of 83 patents standing, and invalidated the rest.
After that decision, the parties filed a series of letters that clarified that the plaintiff had intended to proceed only on the four valid patents, not the rest, but wanted to check with the Court regarding how they should proceed:
[Plaintiff] Cytiva understood that the litigation would proceed only with regard to the four claims that the PTAB upheld as valid, and until JSR’s submission, was not aware that JSR had a contrary view. Cytiva had no intention, and has no intention, …
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
