We talked early last year about how Judge Noreika praised Chief Judge Connolly SJ ranking procedures, and applied them in a case where the parties had filed 11 SJ motions.
As a reminder, under Chief Judge Connolly's procedures, the parties rank their SJ and Daubert motions. The Court addresses them in order, and if it denies one, it then denies the remainder.
Needless to say, it can lead to some significant strategizing prior to filing, where parties try to balance the importance of each motion with its likelihood of success.
This week, Judge Noreika did it again, and I thought it was a good time to remind everyone that this can happen. In VB Assets, LLC v. Amazon.com, Inc. …
Motions to strike are tough in Delaware. Although the reign of Pennypack seems to be slowly entering its dotage, the door remains open for the late-disclosed.
With exclusion so rare, its a bit odd we don't see more of Rule 37's lesser sanction -- fees.
But visiting Judge McCalla gave us one on Monday in Invacare Corp. v. Sunrise Medical (US) LLC, C.A. No. 21-823-JPM (D. Del. May 22, 2023) (Oral Order). The facts there were pretty stark.
The defendant had an inequitable conduct claim based on the patentee's failure to inform the PTO that identical claims had previously been rejected. Plaintiff's prosecution counsel testified that the failure was due to an error in an internal spreadsheet they kept of related applications that omitted the relevant application. Plaintiff had previously withheld the spreadsheet as privileged but eventually waived privilege and produced it.
Unfortunately, it came out during expert discovery that the spreadsheet actually contained the relevant application. This was probably a bad day for a lawyer somewhere. Plaintiff then went back to see if there were other versions of the spreadsheet that did omit the application -- they eventually found and produced some, but by then it was 4 months after the close of fact discovery.
Defendant moved to exclude these new references. Judge McCalla denied the motion but ordered plaintiff to pay what will surely be a hefty sum to cover the ...
IP/DE launched 3 years ago today, with our first post published on May 25, 2020. The site started off as my pandemic project. I'm thrilled that it's still going three years later—and we don't plan to stop posting any time soon.
As I said in that first post, my goal has always been for IP/DE to be a "less formal, just-what-you-need-to-know style of blog"—the kind of legal blog I'd want to read! Something that "covers only the most interesting parts of opinions, orders, transcripts, and news, in the shortest way I can."
We've continued to strive to hit that goal, although our posts are often longer than I'd like, and we sometimes tend to write about …
Today we highlight a decade-old opinion involving an inventor’s death, the reports of which were greatly exaggerated. The moral of the story: trust but verify. Do a Google search, even if you have it on good authority. Question your assumptions.
It's an oddball case that provides the perfect foil for Nate’s article yesterday involving the opposite fact-pattern—a dead expert. Here, an inventor thought expired was “not only alive, but also willing (‘indeed eager’)” to testify in the upcoming trial, scheduled only ten days away.
In an unusual mix-up, plaintiff relied on testimony from the plaintiff’s 30(b)(6) witness, a former high-ranking officer for plaintiff's company, who said that the inventor was deceased. Where'd he get that information? Several of plaintiff’s …
I've got a real oddball fact pattern for you today. I'm not sure there's a takeaway for your everyday litigation life, but please remember to hug your experts -- you'll be glad you did.
AI-Generated, displayed with permission
The last time the plaintiff in Personal Audio LLC v. Google LLC, C.A. No. 17-1751-CFC (D. Del. May 22, 2023) spoke to their expert was in August 2021 when he submitted a declaration opposing a Daubert motion.
Sadly, he passed the following January.
Unfortunately, no one told the plaintiff.
Amazingly, two months after that the expert consulting firm plaintiff had been working with reached out to see if the expert was still needed. I can only imagine they were hoping …
Artist's depiction of an attorney on the phone with the Wall Street Journal, trying frantically not to say anything embarassing.AI Generated
The Wall Street Journal posted a nice article today summarizing Chief Judge Connolly's efforts against Mavexar, with comments from myself and Maya Steinitz. Here's how they summarize the situation:
A federal judge in Delaware is on a campaign to eliminate hidden funding of intellectual-property lawsuits against companies, a crackdown that is roiling the patent-law industry.
They go on to give a solid overview of what has happened so far, and they mention the upcoming hearing that the Court set for June 8.
It's good to see this in the spotlight—it's an important issue that people care about!
Stipulations to extend time are a popular, both as a topic on this blog and in how routinely they are filed. Usually, stipulations to extend time are granted without incident, so we highlight the outliers as reminders that sometimes there’s more to it than mere agreement between the parties.
Don’t forget! If you’re stipulating to extend the:
Deadline for discovery completion, or
Postponement of trial
You must include the reasons for the request in your stipulation or motion. And the local rules require you to include either a supporting affidavit by the requesting counsel’s client or a certification that counsel has sent a copy of the request to the client.
This latter requirement reminds me of pre-college: in which students who received sub-optimal test scores needed to get a parental signature to prove to the teacher that the parent had seen the score and reviewed the offending test.
The parties in The Trustees of the University of Pennsylvania v. Genentech, Inc., C.A. 22-145-MN-JLH demonstrated how to correct deficiencies. Earlier this month, Judge Noreika issued an oral order denying their prior ...
On Wednesday, Judge Andrews issued an order in Salix Pharmaceuticals, Ltd. v. Norwich Pharmaceuticals, Inc., C.A. No. 20-430-RGA (D. Del. May 17, 2023) rejecting an attempt to evade judgment in an ANDA action based on the filing of an amended ANDA.
The defendant in the case had won on one method of treatment, and lost on the other. It filed an amended ANDA seeking to remove the infringing treatment from the label:
Defendant filed an ANDA seeking to make and market a drug for two different methods of treatment-the IBS-D indication and the HE indication. I had a bench trial. After trial, I ruled in Defendant's favor on the IBS-D indication (as …
Every now and again when I look over a docket, I am reminded of the case of Jarndyce and Jarndyce, as recounted in Bleak House:
Jarndyce and Jarndyce drones on. This scarecrow of a suit has, over the course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties …
Today Chief Judge Connolly addressed a motion to dismiss a combined trade dress, federal unfair competition, copyright infringement, and design patent infringement action.
The parties apparently agreed that the defendant in the action did not meet the TC Heartland venue test for the patent portion of the action:
Argento is a New York corporation with its principal place of business in New York. . . . It is undisputed that Argento does not own, rent, or maintain any offices, physical property, addresses, or bank accounts in Delaware and does not employ any Delaware-based employees, agents, or representatives. It is also undisputed that venue of Globefill's patent claim against Argento does not lie …
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