A Blog About Intellectual Property Litigation and the District of Delaware

Entries for author: EDiBenedetto

Upcoming October Jury Trials

Of the six jury trials planned for October, four remain on the schedule as of now, including one patent and one trademark action. One patent jury trial was postponed for a second time this month due to the COVID-19 travel ban.

  • 10/12/2021: USA v. Crocker, C.A. 17-10-LPS (D. Del.): This criminal case was originally scheduled for a jury trial before Judge Stark on October 5, but was postponed at the last minute, likely due to a change in counsel. The trial is now set for October 12.
  • 10/18/2021: Parkell v. Frederick, C.A. 15-718-SB (D. Del.): The parties in this prisoner civil rights case agreed to jury trial before …

Autumn trials are adding up
Kelly Sikkema, Unsplash

The District of Delaware has many more jury trials scheduled in the next two months than it has in recent months, and several of the upcoming trials were originally postponed for COVID-19 reasons. The September calendar looks particularly busy at the moment, but several case dockets indicate steps toward resolving before trial, suggesting that several of these trials may not be on the calendar much longer.

Remaining August Jury Trials

District of Delaware continues to permit multiple simultaneous jury trials, as evidenced by the three trials to begin on the same day this month:

  • 8/16/2021: McClanahan v. Priority 1 Air Rescue Operations Arizona, LP., et al., C.A. 18-1237-CFC-SRF (D. Del.): …

Patent Lawsuit
Libby Levy, CC BY-SA 2.0

Having an exclusive patent license should mean that the licensee has the right to enforce that patent against potential infringers, right? Yes, but the license has to be exclusive.

In a recent opinion, Judge Connolly held that if another entity—even an affiliate company—has the ability to grant a patent license to the defendant, then the plaintiff did not possess standing to bring a patent infringement action against that defendant without also joining the other entity.

Exclusive Licenses: Implied vs. Explicit

There are multiple varieties of "exclusive" licenses. A party may have an implied exclusive license, for example, if a contract gives the licensee the sole right to perform and prohibits the licensor from …

Mirrored Alex Iby, Unsplash

Last month, Judge Burke struck "a substantial portion" of an expert's infringement report after the expert relied on his own anonymous peer review to prove infringement, without disclosing that he had been the author.

The truth did not come out until the deposition.

The Expert Secretly Relied On His Own Prior Anonymous Writing

Plaintiffs in this action allege infringement only via the doctrine of equivalents, arguing that the differences between the accused drug and the claimed drug are insubstantial. Defendant argues that the differences are substantial, relying in part on a 2016 article showing that the accused drug performs significantly better than the claimed drug.

Plaintiffs' expert reports criticized the 2016 article based on two …