A Blog About Intellectual Property Litigation and the District of Delaware


Entries for search: Stark

Don't Get Your Hopes Up for a New District of Delaware Patent Jury Trial Date in 2020

Andrew E. Russell, Oct. 14, 2020
Scheduling Jury Trials

Unsurprisingly, in light of COVID-19, recent signs indicate that the Court is all booked up for this year, and probably for a large part of next year.

Here, for example, is a Judge Stark order from yesterday:

ORAL ORDER: Having discussed with the parties on repeated occasions whether and when to schedule this patent infringement case for a jury trial (see, e.g., D.I. 474, 549, 583, 590, 591, 593, 596, 605, 607, 608, 610-15) and having found (unfortunately) no date that is reasonable and available to all parties and to the Court, IT IS HEREBY ORDERED that trial in this matter is CONTINUED to a DATE TO BE DETERMINED, most likely in 2021 (and certainly NOT in 2020). IT …
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Some Trials Voluntarily Delayed, But No Indication the Court Will Extend Jury Trial Ban (Yet)

Andrew E. Russell, Sept. 11, 2020
COVID-19

COVID-19
COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

The District of Delaware's current coronavirus-related standing order banning jury trials expires Tuesday, 9/15.

When it expires, the Court will allow jury trials under its Phase 2 guidelines, starting with only a single jury at a time, and prioritizing criminal cases.

So far there has been no indication that the Court will extend the ban, although the previous extension occurred on day the last order expired.

Upcoming trials were rescheduled in a total of five cases this week, but it looks like those were rescheduled at the parties' request (four of those cases were related to last weeks' delay in the Sprint action).

The most recent information I've seen from …

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No New Trial After Both Sides Cited Coronavirus Benefits of Invention in March Trial

Andrew E. Russell, Aug. 17, 2020
Post-trial Motions COVID-19

On Friday, Chief Judge Stark issued his opinion on post-trial motions in Pacific Biosciences of California, Inc. v. Oxfore Nanopore Tech., Inc., C.A. No. 17-275-LPS-CJB (D. Del.).

You may remember it as the case which made news at the time due in part to the mention of coronavirus in the opening statements.

The trial took place March 9-18, just as the first COVID-19 lock downs were ramping up.

Incredibly, both parties touted coronavirus-related effects of their products in their opening statements at trial. Plaintiff suggested that its product could "help develop a vaccine" for the coronavirus. Defendant went even further:

[Defendant made] a product that is changing lives as we speak. Whether it is helping people …
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The Difference Between Equal and Equitable, Expert Edition

Jeff Castellano, July 15, 2020
Depositions Expert Discovery

When it comes time for expert depositions in multi-defendant cases, parties often disagree about how many deposition hours each side (or more specifically, each party) should get.

Judge Stark addressed this last week in H. Lundbeck A/S v. Apotex Inc., C.A. No. 18-088-LPS (D. Del.), where he permitted seven hours of expert deposition time for common issues and four additional hours for each of the nine defendants for defendant-specific issues.

Plaintiffs' depositions of certain of defendants' experts were expanded as well, to between 9 and 14 hours.

Judge Stark explained that the limits

reflect a reasonable and appropriate exercise of the Court's discretion, considering all circumstances, including the fact that this consolidated case is, in reality, …
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Judge Williams Rejects Challenge to Court's SJ Ranking Procedures, Notes Counsel's "Flagrant Typos and Inconsistent Formatting"

Andrew E. Russell, April 7, 2025
Summary Judgment Congestion

Attorney tilting at windmill
AI-Generated, displayed with permission

Back in 2021, Chief Judge Connolly instituted a new ranking procedure for summary judgment motions in his cases, in which parties rank their SJ motions and, if the top-ranked motion is denied, all lower-ranked motions are denied as well. The Court later expanded that procedure to encompass Daubert motions as well. Judge Williams has adopted it (for SJ motions only), and Judge Noreika has experimented with it—although at least one other judge has declined to adopt it.

To put the procedures in context, judges on the Court have long applied various measures to control the workload generated by summary judgment motions. Former Chief Judge Sleet, for example, required parties to request leave before filing summary judgment …

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Judge Williams Declines to Exclude Expert Opinions on the Law by a Law Professor and a Lawyer (for a Bench Trial)

Andrew E. Russell, Feb. 26, 2025
Expert Witness Expert Discovery

"Your honor, in my expert opinion, the law says we win. Their expert is wrong, because he thinks the law says we lose." AI-Generated, displayed with permission

The Court often excludes experts who offer opinions regarding U.S. law itself—but there are some gray areas and circumstances where the Court has permitted such testimony. In patent cases, for example, the Court has typically excluded expert testimony about substantive issues of patent law, but has sometimes permitted experts to testify on PTO procedures (and sometimes not).

This week we got some more guidance, specifically in the context of a bench trial. In Upsher-Smith Laboratories LLC v. Zydus Pharmaceuticals (USA) Inc., C.A. No. 21-1132-GBW, the Court unsealed an order from last year …

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Together At Last

Nathan R. Hoeschen, Jan. 15, 2025

It's been some time since the Court discontinued its Court-sponsored ADR program, and cancelled all then-pending mediations in the wake of Judge Stark's elevation.

In the years since, we have seen occasional orders from the Court requiring parties to submit to private mediation. Typically, this has occurred in cases where the parties have indicated that they are already near settlement, and often on the eve of trial.

Chris Liverani, Unsplash

Last week's order in Delta Electronics, Inc. v. Vicor Corporation, C.A. No. 23-1246-JLH, D.I. 70 (D. Del. Jan 9, 2025), was a bit different.

There, two days after the Markman hearing and well before any scheduled trial, Judge Hall issued an order compelling in-person mediation …

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A New Technique? Peicemeal Claim Construction Opinions Issued as Individual Oral Orders

Andrew E. Russell, Aug. 9, 2024
Congestion Claim Construction

I couldn't find a picture for this. Just imagine each leaf is an individual claim construction oral order.
I couldn't find a picture for this. Just imagine each leaf is an individual claim construction oral order. Erol Ahmed, Unsplash

I've noticed that, since November of last year, Judge Burke has been issuing claim construction opinions in some cases in the form of a series of oral orders on the docket, rather than a formal memorandum opinion or an order with footnotes. I thought I'd flag this so that people know what may happen if you have claim construction in a case before Judge Burke.

I first saw the Court construe terms via oral orders on the docket in November 2023, in The Nielsen Company (US), LLC v. TVision Insights, Inc., C.A. No. 22-057, D.I. 140-141 ( …

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Judge Hall Holds that Magistrate Judge Hall's Order Was Not "Clearly Erroneous and Contrary to Law"

Andrew E. Russell, Jan. 26, 2024
FRCP 72 Objections to R&Rs

Order Approved
AI Generated, displayed with permission

Plaintiff in Applied Biokinetics LLC v. KT Health, LLC, C.A. No. 22-638-RGA-JLH (D. Del.) had some bad luck this month.

Late last month, Magistrate Judge Hall denied their motion to strike an expert report that they argued exceeded the bounds of the parties' contentions.

Shortly thereafter, Plaintiff objected to Magistrate Judge Hall's order, appealing to Judge Andrews to reverse the order because it is unsupported:

ABK would be unfairly prejudiced if KT were permitted to use its previously-undisclosed invalidity theories because ABK properly relied on KT’s invalidity contentions, discovery responses, and case narrowing during fact discovery. . . . The Magistrate Judge’s decision to not strike any portion of KT’s invalidity report …
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Slick § 101 Scenario Illustrates the Difference Between Abstract and Not-Abstract

Andrew E. Russell, Oct. 13, 2023

Somehow I feel like this inventor ought to have two dogs, one named
Somehow I feel like this inventor ought to have two dogs, one named "Solution" and the other "Result" AI-Generated, displayed with permission

We haven't been posting much about § 101 lately. That's largely because things have leveled out a bit. Everyone basically knows the drill at this point.

But it was still great to read Judge Bryson's opinion in KOM Software Inc. v. NetApp, Inc., C.A. No. 18-160-WCB (D. Del. Oct. 4, 2023).

In it, Judge Bryson tackled two separate patents, both challenged on § 101 grounds. Both patent specifications were directed to the same invention, but the claims differed widely. Judge Bryson easily found one abstract and one not, illustrating the difference.

Both patents' specification involve …

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