A Blog About Intellectual Property Litigation and the District of Delaware


Entries for search: Wolson

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 …

View

March Jury Trial Update

Emily DiBenedetto, Feb. 21, 2022

marcin-skalij-lfCm8yyTGIo-unsplash
Marcin Skalij, Unsplash

This month, COVID has not directly caused jury trial delays for the District of Delaware, though we don't know of any jury trials that went forward in February.

In the next few months, the Court has a busy docket, filled with patent cases and sprinkled with cases before visiting judges. In particular, Judge L. Felipe Restrepo, sitting by designation from the 3rd Circuit Court of Appeals, is scheduled to handle three out of the sixteen upcoming cases. Judge Stark is also scheduled to handle two upcoming jury trials, though this appears likely to change given his confirmation to the Federal Circuit.

February Jury Trials Off the Calendar

None of the expected February jury trials went forward, though no delay or cancellation was due to COVID.

  • 2/7/2022: Skeans v. Key Commercial Finance LLC, C.A. 18-1516-CFC-SRF (D. Del.): In this fraud/estate case, Plaintiff requested that the in-person pretrial conference be adapted into a virtual one after Plaintiff’s residential community went into a COVID lockdown, preventing his physical attendance. (D.I. 117). Thereafter, the trial was postponed due to "a change in the Court's trial calendar," with the parties' consent.
  • 2/14/2022: Chugai Pharmaceutical Co., Ltd. v. Alexion Pharmaceuticals, Inc., C.A. 18-1802-MN (D. Del.): The parties stayed this five-day patent trial at the last moment, according to the docket. The Court previously rescheduled it from January due to COVID concerns for witnesses and attorneys traveling from outside the U.S. (D.I. 399).
  • 2/22/2022: Deshields v. JR Rents Inc., C.A. 20-1626-MN-SRF (D. Del.): Stipulated ...
View

"A Patentee Cannot Have His Claim and Eat It, Too"

Andrew E. Russell, July 29, 2024
Re-exam Ex Parte Reexamination

Exploding Cake
AI-Generated, displayed with permission

On Friday, visiting Judge Wolson granted summary judgment of non-infringement in PACT XPP Schweiz Ag v. Intel Corp., C.A. No. 19-1006-JDW (D. Del. July 26, 2024), after the patentee shot themselves in the foot while opposing invalidity before the PTO in an ex parte reexamination.

Basically, the patent relates to a connection within a microprocessor. The asserted claims require a "dedicated connection" between two things.

During re-exam (co-pending with the district court case), the PTO rejected the claims based on a prior art reference that could be configured to connect multiple different things on either side. The patentee pushed back, arguing that a "dedicated connection" requires connecting the two things and nothing else …

View

Court: "Motions to seal judicial records are a big deal."

Andrew E. Russell, Feb. 26, 2024
Motion to Seal Trial Practice

Once you stop groaning, you can use this image of
Once you stop groaning, you can use this image of "sealing the courtroom" to help you remember to move to seal next time. AI-Generated, displayed with permission

Most filings in the District of Delaware can be made under seal without a motion. The Court requires a motion to seal certain things, however, including hearing transcripts—and the burden on those motions can be high.

I've noticed that out-of-town counsel sometimes forgets just how involved it is to file a motion to seal. It's not a form motion that you can draft up quickly. It's a substantive filing, that also requires a meet-and-confer, and that is best supported by a client declaration.

Visiting Judge Wolson, of the Eastern District of Pennsylvania, reminded …

View

"A Physicist, a Chemist, and an Economist Find Themselves on a Desert Island with a Single Can of Food . . ."

Andrew E. Russell, Feb. 7, 2024
Apportionment Daubert

Island
AI-Generated, displayed with permission

Visiting Judge Wolson of the Eastern District of Pennsylvania issued a colorful opinion on Monday. It starts with a joke:

Economists love assumptions. One joke recites that a physicist, a chemist, and an economist find themselves on a desert island with a single can of food. The physicist offers to calculate the force needed to use a coconut to open the can. The chemist offers to make a solution that will eat through the can’s top. The economist tells them they are making it too complicated and just to assume a can opener.

Wirtgen America, Inc. v. Caterpillar, Inc., C.A. No. 17-770-JDW, at 1 (D. Del. Feb 5, 2024).

The opinion involves an …

View

No, You Can't Do That—Court Rejects Attempt to Offer Expert Testimony Regarding Strength of Own Prior Defenses

Andrew E. Russell, Jan. 17, 2024
Expert Witness Expert Testimony

"What do you mean, attorney argument! This is unbiased expert testimony about how awesome our positions are." Braydon Anderson, Unsplash

Well, this is a new one for me. In Wirtgen America, Inc. v. Caterpillar, Inc., C.A. No. 17-770-JDW-MPT (D. Del. Jan. 16, 2024), the plaintiff had previously brought an action in the ITC against the defendant, and won—achieving an exclusion order that stood up (in part) on appeal.

Now, in a District of Delaware action on the same patents, plaintiff argues willfulness based in part on the previous ITC ruling. Defendant tried to offer an expert who would testify about how great its defenses were at the ITC:

Caterpillar offers Mr. Bartkowski to opine on how …
View

Court Orders Deposition Reopened After Deponent Consulted with Counsel Between Questions

Andrew E. Russell, Nov. 29, 2023
Depositions Privilege

Notes
The Climate Reality Project, Unsplash

We've written before about the risks of a deponent consulting with counsel during a deposition. This week, visiting Judge Wolson ordered a deposition reopened after counsel did just that:

AND NOW, this 27th day of November, 2023, upon consideration of Stragent’s Motion For Sanctions Against VCUSA Pursuant To Fed. R. Civ. P. Rule 30(d)(2) For VCUSA’s Violation Of Local Rule 30.6 And Established Law (D.I. 100), and for the reasons set forth on the record during a hearing with the Parties, it is ORDERED that the Motion is GRANTED IN PART and DENIED IN PART as follows:
1. The Motion is GRANTED, to the extent Stragent seeks to reopen the deposition of [the deponent] …
View

Highlights from the United States District Court District of Delaware Annual Report 2023

Emily DiBenedetto, Aug. 25, 2023

This report, produced by the Court, is available on the Court's website. I’d encourage our readers to peruse the full report, but we highlight a few interesting statistics and announcements below.

IP Cases Continue to Dominate the Docket

In 2022, there was an increase in jury trials to 19 in the District of Delaware. Patent/IP cases accounted for 44% of all civil filings in the last 7 years and 43% in 2022 alone.

Pie Chart Delaware Docket
The United States District Court: District of Delaware

Nationally, patent filings decreased from 4,037 filings to 3,854. In the District of Delaware in 2022, 685 patent cases were filed, a 23.04 percent decrease from the previous year of 890. Delaware is second in the nation, after …
View

Closed for Trial

Andrew E. Russell, March 26, 2022
Trial Litigation

This guy knows how to go to trial
This guy knows how to go to trial Henry Hustava

Just a blog service announcement: We'll be going on a bit of a blogging hiatus for the next week or two. Our firm handled a trial last week before Judge Andrews as local counsel, and we're set for three simultaneous trials this week before Judges Connolly, Andrews, and Noreika. Then we have yet another trial the week after, before visiting Judge Wolson.

If you're adding them up, that's five trials in three weeks as local counsel! So we're up to our necks in prep work, with about a dozen visiting co-counsel and staff using our offices as trial space, and we're going to have to slow down a bit on …

View

Where Have All The Ca-a-a-ses Gone?

Nathan R. Hoeschen, March 17, 2022

Buffalo
Andrew E. Russell, CC BY 2.0

If you're invested enough in Delaware litigation to be reading this blog, you will be aware that Judge Stark is slated to leave us soon, and the district has set forth some guidance on what will happen to his cases when he departs. The Court has been reassigning Judge Stark's cases in batches since the beginning of February, and I have arbitrarily decided (because its Friday) that today we have enough data to do a quick rundown of where the cases are going.

As of today, the Court has transferred a mere 26 of Judge Stark's patent cases (counting related cases as a single case),whichhave been distributed as follows:

  • 7 - Judge Noreika …
View
Newer
Older

Archive