A Blog About Intellectual Property Litigation and the District of Delaware


Entries for search: Stark

When Does A Case Really Begin

Nathan R. Hoeschen, July 21, 2022
Motion to Dismiss Scheduling Order

setyaki-irham-tfdff8Poebw-unsplash
Setyaki Irham, Unsplash

I was talking to my fellow blogger Andrew the other day, when we had the following exchange:

Andrew: Greetings treasured friend and colleague! Have you noticed that Judge Andrews hasn't been requiring parties to submit scheduling orders whilst motions to dismiss are pending?

Me: Truly?

Andrew: Indubitably, I would not jest on such a matter! I have, in fact, just confirmed it by reviewing his 10 most recent orders on motions to dismiss with my own eyes.

Me: Well I cannot gainsay such thorough research. But what of the others? Do Judges Noreika and Connolly decide motions to dismiss before requiring the parties to submit a proposed schedule?

Andrew: I'm certain I don't know, but certainly …

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Updates from the Annual FBA Meeting, Including Potential Filing Deadline Change and D. Del. Local Rules Update!

Andrew E. Russell, July 13, 2022
Court Announcement Congestion

Checklist
Glenn Carstens-Peters, Unsplash

Today was the Federal Bar Association's annual luncheon, an annual event where the Chief Judges give updates on the status of Delaware's District and Bankruptcy courts.

This year's event was the first in-person meeting since the start of the COVID lockdowns. It was great to see everyone again in person!

Attendance was relatively low. Some speculated that this may be due to expiring FBA memberships. My theory is that there may have been an issue with the invitation e-mail (I never received it myself, and I'm a current FBA member).

In any case, I wanted to post some highlights and interesting facts from the speakers today, as we did for the virtual event last year:

  • The …
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How Long Does a Markman (Claim Construction) Hearing Usually Go in the District of Delaware?

Andrew E. Russell, June 7, 2022
Markman Hearing Markman

Analog Clock
None, Ocean Ng, Unsplash

A recurring question here in D. Del. is "how long should we request for the Markman hearing?" (when such a request is required under the scheduling order).

Parties often request around 2-3 hours, depending on the number of terms. But I was curious how much time judges actually order for Markman, so we collected some statistics. Here is how many minutes each judge has permitted for Markman oral argument, on average, over the last year:

  • Judge Stark: 91 minutes on average (7 hearings)
  • Judge Andrews: 92 minutes on average (9 hearings
  • Judge Noreika: 102 minutes on average (18 hearings)
  • Magistrate Judge Burke: 170 minutes (9 hearings)
  • Magistrate Judge Hall …
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Source Code Is Not a Core Technical Document

Andrew E. Russell, May 18, 2022
Source Code Discovery Dispute

Source Code
Markus Spiske, Unsplash

Delaware's Default Standard requires defendants to produce "core technical documents" on the accused products, even absent discovery requests from the plaintiff.

These core technical documents "includ[e] but [are] not limited to operation manuals, product literature, schematics, and specifications." Often parties interpret this as a relatively light production of just the core non-public material that a plaintiff needs to make out its infringement contentions.

Sometimes, however, plaintiffs will push back and demand production of source code, saying that a defendant must produce source code as part of its core technical documents.

This is a recurring issue, so I thought it was worth noting that, in Judge Fallon's discovery dispute order that we discussed earlier, she also …

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Brush Up on Your Tennessee Local Patent Rules: Visiting Judge McCalla Brings Taste of Home Jurisdiction

Andrew E. Russell, May 3, 2022
Visiting Judges Congestion

Tennessee
Drew Beamer, Unsplash

Visiting Judge McCalla has taken about 13 patent cases so far here in Delaware, including some additional assignments late last month. A reader who has a case before him flagged an interesting point: Judge McCalla brings some of his home-state rules with him.

In his orders on hearings and scheduling conferences, for example, he directs the parties to either the Northern District of California local patent rules or the District of Tennessee local patent rules:

1. A video motion conference re: Motion to Dismiss (ECF No. 11) will be held . . .
2. The parties should refer to the Northern District of California or the Western District of Tennessee Patent Rules.

See, e.g., New York University v. Resmed, Inc., C.A. No. 21-813-JPM (D. Del. Mar. 28, 2022).

Likewise, scheduling orders in his cases may look a bit alien to regular Delaware practitioners, as he uses the District of Tennessee form. That form results in a two-page scheduling order like the attached, which focuses primarily on a few of the initial dates and guidelines, rather than ...

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Aaaaand . . . We’re Back!

Andrew E. Russell, April 18, 2022

Typical post-trial pile of unread e-mail
Typical post-trial pile of unread e-mail Andrew E. Russell, CC BY 2.0

We’re back! Our firm survived five trials over the course of three and a half weeks, including one week where we had a separate trial in front of each of the three sitting Article III judges in Delaware, simultaneously! We’ve also learned quite a lot about trial in front of visiting Judge Wolson.

There really was no time for blogging these last few weeks. As most of our readers know, going to trial in even just one case can keep you busy—especially if you’re acting as good Delaware counsel should, doing things like helping on the merits and strategy (or even taking witnesses), drafting motions and bench …

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What Does It Take for "Unclean Hands" and "Prosecution Laches" Affirmative Defenses to Actually Survive a Motion to Strike?

Andrew E. Russell, March 14, 2022
Motion to Strike Affirmative Defenses

These hands actually look pretty clean.
These hands actually look pretty clean. Nathan Dumlao, Unsplash

Defendants in patent cases often seem to throw in somewhat obscure affirmative defenses with little or no factual support. "Unclean hands" is a classic example. Defendants will sometimes seem to include defenses like unclean hands and prosecution latches with no real factual support (and, I suspect, not always the best grasp on what those defenses really mean).

Judge Stark issued an opinion today on a motion to strike "unclean hands" and "prosecution laches" defenses offers an example of what happens when a defendant actually does adequately support these defenses.

First, the standard: to succeed on a motion to strike affirmative defenses, the insufficiency must be "clearly apparent":

"[P]ursuant to Rule …
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Giving Away the Crown Jewels

Nathan R. Hoeschen, Feb. 17, 2022
Default Standard Source Code

Computer Screen
Arget, Unsplash

As we must have discussed in one of the prior 238,000,000 entries (estimated) on this blog, the Default Standard for Discovery requires an accused infringer to produce it's "core technical documents" early in the case (60 days after the scheduling conference), to allow the patentee to prepare its infringement contentions. This leads to the question of what exactly constitutes a "core technical document?" and, in particular, is source code a "core technical document"?

This question has gone largely unaddressed in the years since the Default Standard was adopted [editor's note: with at least one exception back in 2012]. This week, however, Judge Stark gave us a parting gift of a bit of clarity, holding that …

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Judge Noreika Tries New Summary Judgment Procedure in Light of Trend Towards "Shotgun Theories and Voluminous Submissions"

Andrew E. Russell, Jan. 21, 2022
Summary Judgment FRCP 56

Visualization of the average D. Del. judge's <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Summary Judgment'>SJ</a> motion pile (circa 2021, pre-Judge Stark departure)
Visualization of the average D. Del. judge's SJ motion pile (circa 2021, pre-Judge Stark departure) Christa Dodoo, Unsplash

Last month Judge Noreika issued an order praising Chief Judge Connolly's ranking-based summary judgment procedure, and imposing a similar procedure—at least for one case.

Under his SJ procedures, Chief Judge Connolly addresses each party's motions in their ranked order, and if a single motion is denied, he may decline to consider all remaining motions.

Judge Noreika issued her order after the parties in the case, Dali Wireless, Inc. v. Commscope Techs. LLC, C.A. No. 19-952-MN (D. Del.), sought …

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How to Get Things Moving

Nathan R. Hoeschen, Dec. 16, 2021
Scheduling Conference Discovery Dispute

jon-tyson-PXB7yEM5LVs-unsplash
Norman Tsui, Unsplash

One of the oddities of beginning a case is the somewhat tortured interaction between Rules 26 and 16. Under Rule 26(d), most discovery can't be served until after the parties have their initial scheduling meet and confer. That conference, discussed in Rule 26(f), should take place "as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b)." Rule 16(b), in turn, requires the court to issue the scheduling order:

as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served …
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