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Entries for search: Stark

February Jury Trial Update

Emily S. DiBenedetto, Jan. 26, 2022
Congestion COVID-19

Masks
Isaac Quesada, Unsplash

February Jury Trials

After completing all planned December jury trials uninterrupted by COVID-19, the January docket became lighter after the Court continued several trial dates to later this year due to COVID-19 concerns. One of these continued trials, a patent case, was rescheduled to February; the Court also has three other jury trials on the calendar for next month.

In December, the Court reauthorized the use of video and telephone conferencing pursuant to the CARES Act. Relatedly, Governor Carney reinstituted a mask mandate, requiring individuals in Delaware to wear masks while in public spaces, with select exceptions.

Review of December Jury Trials

In our November update, we identified five upcoming December jury trials. Three proceeded as …

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A New Front in Patent Litigation? Accused Infringer Seeks Temporary Restraining Order to Reverse Product Delisting on Amazon.com

Andrew E. Russell, Dec. 8, 2021
Preliminary Injunction UPNE

Warehouse
Adrian Sulyok, Unsplash

Here's one I haven't seen before. In EIS, Inc. v. Intihealth GER GmbH, C.A. No. 19-1227-LPS (D. Del.), the counterclaim-defendant filed a motion for a TRO to force the patentee defendant to withdraw infringement notices it provided to Amazon.com regarding the counterclaim-defendant's products, and to force them to request that Amazon restore the product's ranking and reviews on the site:

Plaintiff EIS Inc. (“EIS”) respectfully moves the Court to grant a temporary restraining order to enjoin Defendants, requiring them to withdraw their patent infringement notice(s) to Amazon that reference EIS’s “Satisfyer” products, and ordering that the withdrawal shall request that Amazon restore EIS’s product listings with the same rankings and customer reviews …
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Who Do You Want to Decide Your § 101 Motion

Nathan R. Hoeschen, Dec. 2, 2021
101

As we discussed earlier this week, Judge Stark's last § 101 day (maybe ever) was a real coup for the patentees, with all 6 patents surviving. This is, of course, the ultimate continuation of a years-long trend in these hearings with § 101 motions facing harsher and harsher odds.

What we at IP/DE have not discussed is how this trend compares to the averages for our other judges. Running the numbers on the 10 most recent rule 12 motions on 101 issues, the results are as follows:

  • Judge Stark - 20% of § 101 motions granted
  • Judge Andrews - 60% of § 101 motions granted
  • Judge Noreika - 0% of § 101 motions granted
  • Chief Judge …
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To Plan A Trial

Nathan R. Hoeschen, Nov. 4, 2021
Trial Calendar Trial Scheduling

It's no secret that Delaware, like essentially everywhere else, has a huge number of trials scheduled for the coming months with many of our judges double and triple-booked with trials. As the pandemic backlog finally begins to clear, I thought it might be interesting to see if this congestion was having any effect on when trials were being scheduled for new cases., compared to our historical average. To that end, below is the current average time from scheduling order to trial for each of our Article 3 judges based on their 5 most recent schedules:

  • ANDREWS - 23.8 Months
  • CONNOLLY - 24.1 Months
  • NOREIKA - 25.3 Months
  • STARK - 24.2 Months

I was a bit surprised that these figures were …

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Part Man, Part Corporation

Nathan R. Hoeschen, Oct. 28, 2021
Depositions

It can sometimes get messy when someone is deposed both in their individual capacity and as a Rule 30(b)(6) designee. Sometimes the parties specifically call out which sections of the transcript relate to 30(b)(6) topics or otherwise signpost for the record which bits of the deposition are meant to be binding on the corporation—but, frequently, the resulting transcript is less clear than one might hope. A discovery dispute earlier this week showcased an attempt at a novel solution to this problem that, unfortunately, doesn't work.

The defendants in Schwendimann v. Neenah, Inc., C.A. No. 19-361-LPS, noticed a deposition of the plaintiff's corporate head, Jodi Schwendimann, in her personal capacity, and also sent a 30(b)(6) notice for the corporation that …

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November Jury Trials

Emily S. DiBenedetto, Oct. 22, 2021
COVID-19 Trial Calendar

This year's November begins on a Monday.
Theodorus van Hoytema

Remaining October Jury Trials

  • 10/25/2021: Boston Scientific Corp. v. Nevro Corp., C.A. 18-644-CFC-CJB (D. Del.): This patent jury trial is calendared to start on October 25 before Judge Connolly.
  • 10/25/2021: CareDx, Inc. v. Natera, Inc., C.A. 19-662-CFC-CJB (D. Del.): The parties in this trademark case will begin jury trial before Judge Connolly on October 25.

Upcoming November Jury Trials

One patent case has a long-standing trial date that appears intact, but another patent case appears close to settling.

  • 11/01/2021: Novel Drug solutions, LLC v. Harrow Health, Inc., C.A. 18-539-MN (D. Del.): Defendant proposed rescheduling the pretrial conference for an earlier date, to which the Plaintiff agreed (D.I. 368), but Judge Noreika declined the rescheduling. D.I. 369. This contract case is set to proceed for five days on November 1.
  • 11/01/2021: Shure Incorporated v. Clearone, Inc., C.A. 19-1343-RGA-CJB (D. Del.): Judge Andrews has resolved multiple merits issues (D.I. 571; D.I. 619; D.I. 621) after adopting the Magistrate Judge’s recommendations to deny most of the parties' dispositive motions. The case still appears on track to proceed to trial. ...
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"You Get What You Give": Contention Discovery in Delaware

David M. Fry, Aug. 11, 2021
Motion to Compel Contentions

Tug of War
Merritt Thomas, Unsplash

For many years, the prevailing view in D. Del. has been that "you get what you give" when it comes to contention discovery. In other words, if you want a defendant to serve detailed non-infringement contentions, your infringement contentions should have a similar level of detail.

This standard is built into several of the judges' form scheduling orders, including Judges Stark, Noreika, Burke, Fallon, and Hall. For example, Judge Burke's form provides that:

In the absence of agreement of the parties, contention interrogatories, if filed, shall first be addressed by the party with the burden of proof. The adequacy of all interrogatory answers shall, in part, be judged by the level of detail each party provides; i.e., the more detail a party provides, the more detail a party shall receive.

On Monday, Judge Burke issued an order illustrating the implications of this standard (and the importance of serving detailed contentions).

A defendant moved to compel a response to an interrogatory seeking the plaintiff's detailed validity contentions. Judge Burke granted the motion, but with a catch:

As for the portion of ROG 15 that asks ...
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How Many Hours of Trial Time Do You Get For a Five-Day Jury Trial? Fewer Than You Might Think

Andrew E. Russell, Aug. 6, 2021
Trial KB

Chalkboard Math
Roman Mager, Unsplash

By default, patent cases in Delaware are typically scheduled for a five-day jury trial in the initial scheduling order. Sometimes, however, it seems that parties don't give any further thought about what the actually means until they need to file a pretrial order much later in the case.

Delaware jury trials are strictly timed. Those who are less familiar with how jury trials typically go may expect that they'll have more time than they really will. A simple back-of-the-envelope calculation by someone who is not in-the-know might be:

40 hours per week / 2 sides = 20 hours per side

That would be wrong. The actual, practical number of hours per side for a five-day patent …

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Failing to Sue Other Competitors Weighs Against Permanent Injunction

Nathan R. Hoeschen, July 15, 2021
Injunction

I know this is not a water heater but it's surprisingly hard to find a public domain picture of one
Sigmund, Unsplash

Judge Stark issued an interesting opinion last week, deciding not to grant a permanent injunction. Although these requests are denied more often than not, this particular opinion was interesting because it rested, in part, on the plaintiff's conduct in failing to pursue third-party (alleged) infringers.

When it came time to rule on the permanent injunction issue, the Court had already determined that the parties in AO Smith Corp. v. Bradford White Corp., C.A. No. 18-412-LPS, D.I. 244 (D. Del. July 9, 2021) were direct competitors. AO Smith, D.I. 220 at 13 (D. Del Mar. 31, 2020). The relevant market also had two other substantial players not involved in the suit.

Unfortunately for the …

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Court Declines to Hold Defendant to Claim Construction Position Taken in Uninstituted IPR Petition Absent Bad Faith

Andrew E. Russell, May 21, 2021
Judicial Estoppel IPR

Yesterday, Chief Judge Stark addressed whether "judicial estoppel" prevents a defendant from taking one position in an uninstituted IPR petition and asserting a contradictory position during claim construction in the district court:

[Plaintiff] Sequoia contends that [defendant] Red Hat is judicially estopped from arguing for a narrower construction than it proposed during the IPR . . . . Judicial estoppel is only appropriate when: (1) the party to be estopped is asserting a position that is irreconcilably inconsistent with one she previously asserted; (2) the party changed her position in bad faith, i.e., with an intent to play fast and loose with the court, and (3) the use of judicial estoppel is tailored to address the affront to the …
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