It seems fairly well known that while parties can freely stipulate to most kinds of schedule adjustments in the District of Delaware, changing the dispositive motion deadline is a danger zone that might result in the denial of your stipulation—or worse, such as the loss of your trial date.
But people often do it anyway. Yesterday, visiting Judge Bryson denied a stipulation that would move the case dispositive motions deadline to April 25, 2025 for a trial starting July 14, 2025.
Assuming the parties use the briefing schedule under the local rules, the Court will not have a full set of papers until May 16, less than 2 months before the first day of trial. No …
This morning, Docket Navigator covered Judge Bryson's D. Del. discovery opinion that was made public this week, focusing on his denial of a motion to strike errata to a 30(b)(6) deposition transcript.
But there are (at least) three other interesting points about the errata in the opinion:
COVID issues make deposition errata more necessary:
Mr. Rothrock had to prepare for his deposition under difficult circumstances, including having to consult remotely with others in the company. Mr. Rothrock understandably could have made a mistake during his deposition in light of the numerous topics and challenging circumstances in which he was forced to prepare. Given those circumstances, I will not disregard Mr. Rothrock’s errata.
The District of Delaware has a 5pm ET filing deadline. This was originally instituted as a 6pm deadline, back in 2014, to improve quality of life for practitioners here. As I've said before—it has been extremely successful.
The 5pm deadlines keeps young associates and staff from having to unexpectedly stay until midnight, disrupting family plans (I recall this happening about once a week). It also keeps clients from having to pay attorneys and staff to sit around and wait for filings. And everyone quickly adapted to working towards either a 5 or 6pm deadline rather than a midnight deadline.
That said, whether the deadline is 5pm, 6pm, or midnight, it's not uncommon for parties to miss it by a few minutes. Often these delays relate to the fact that PACER and CM/ECF tend to slow down quite a bit around 5pm, especially before weekends, as everyone tries to file things simultaneously.
Normally this is not cause for panic. Unlike some jurisdictions, judges in D. Del. generally have not taken an interest in enforcing exact, precise compliance with the 5pm deadline. I have seen parties miss the 5pm by a few minutes countless times, with no response from the Court. Most Delaware counsel seem to agree that it's not worth the Court's or the parties' time to seek a remedy from the Court for a deadline that was missed by only a few minutes.
5 Hours May Be a Bit Much
So I thought it was worth pointing out an instance this week where a party pushed it to far. In Dental Monitoring v. Get-Grin Inc., C.A. No. 22-647-WCB (D. Del. Dec. 13, 2023), a party filed a letter brief at 10:14, and an unopposed motion for leave to file the brief late:
On Tuesday, December 5, 2023, the parties advised the court by email that they had a discovery dispute in this case. They suggested a briefing schedule granting the plaintiff one week to file its letter brief, followed by the defendant’s letter brief one week later. The court directed the parties to file their letter briefs on a shorter briefing schedule, giving the plaintiff until 5 p.m. Eastern Time on Friday, December 8, 2023, to file its three-page letter brief, followed by the defendant’s responsive three-page letter brief at 5 p.m. Eastern Time on Tuesday, December 12, 2023, and an optional reply brief for the plaintiff, to be filed by 5 p.m. Eastern Time on Wednesday, December 13, 2023.
The plaintiff filed its opening letter brief on time. The defendant did not. Instead, at 9:04 p.m. Eastern Time, after the deadline had passed, the defendant filed a motion to extend the time for filing its brief until 11:59 p.m. on December 12, 2023. The plaintiff did not oppose the motion, provided it was given a one-day extension for filing its one-page reply letter. At 10:14 p.m., more than five hours after the deadline, the defendant filed its responsive letter brief.
Id. at 1. Judge Bryson (sitting by designation) criticized the motion for an extension because ...
Judge Bryon issued an interesting stay opinion last Friday.
The plaintiff had initially asserted six patents. Of those, four were dismissed under § 101, and the claims as to one of the remaining patents were severed and stayed pending IPR.
The case was set to go to trial on the last remaining patent on November 30, just over 11 weeks from the date of the order. But, last month, the PTO granted a request for ex parte reexamination of the sole asserted claim of that patent.
Shortly after that, Judge Bryson issued his opinion granting a motion to stay pending re-exam. A couple of interesting points:
What a turnaround! Defendant first indicated it intended to request a stay …
We try to keep it light here at IP/DE, but sometimes I actually learn something and I feel sort of obliged to pass it on. You know, some real dark arts stuff that I wouldn't have known if I didn't have to read absolutely everything written in the district for this blog.
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Today's bit of lore today is about damages, and a split amongst district courts that visiting Judge Bryson has taken a stand on. Can a corporate parent can claim lost profits that would have initially accrued to its subsidiary?
The trite answer to this is "no." The Federal Circuit has squarely held that "a patentee may not claim, as its own damages, the lost profits of a related company." Warsaw Orthopedic, Inc. v. NuVasive, Inc., 778 F.3d 1365, 1375 (Fed. Cir. 2015). However, as Judge Bryson pointed out in his opinion in Kaneka Corp v. Designs For Health, Inc., C.A. No. 21-209 (D. Del. Mar. 3, 2023) (Mem. Op. & Order), several courts have held that lost profits of a subsidiary can still be claimed if they flow "inexorably" from the subsidiary to the parent.
Judge Bryson agreed, stating
To be sure, the Federal Circuit has not expressly recognized that lost profits can be awarded when those profits flow inexorably from a subsidiary to the patentee . . . I find the weight of district court authority on that point to be ...
(Eds. Note - Andrew actually knows how the website works, so he could probably stop me)
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Today's case is RyanAir DAC v. Booking Holdings Inc., C.A. No. 20-1191-WCB, D.I. 399 (D. Del. Aug. 7, 2024). For those unfamiliar, RyanAir is sort of the Irish version of Spirit airlines, although I believe they represent a significantly less wintry ring of hell (I understand they do not charge extra for a seat that did not previously contain an incontinent cat). Booking is a third-party website for booking airfare and accommodations -- similar to Expedia for our American readers.
Apparently, it was undisputed that Booking paid contractors to scrub RyanAir's website via screengrabs to get prices to post on their site. RyanAir sued, alleging that this amounted to a violation of the Computer Fraud and Abuse Act ("CFAA") because, in collecting the screencaps, Booking and its contractors "intentionally accessed a computer without authorization or exceeded authorized access, and thereby obtained information from any protected computer."
So I mean, its pretty close to IP.
The issue was that RyanAir's website was, unsurprisingly, open to the flying public. They ran various anti-spyware measures to prevent bots from scrubbing their website for prices and blacklisted known bots, but any normal person was free to peruse at their leisure. The dispute thus centered on whether running bots to grab the prices, in contravention of terms of service and in an active attempt to circumvent the security measures, constituted access to the website "without authorization." Judge Bryson found that ...
During our long break, when Andrew and I languished upon a beach, trading daiquiri recipes across a bridge table whilst a jazz band played Auld Lang Syne on repeat (they seemed quite uncomfortable in their tuxedos), Judge Bryson brought us an opinion with a new twist on an old PO dispute.
Is this what my life would be like were it not for the blog?AI-Generated, displayed with permission
The Plaintiff in Rheault v. Halma Holdings Inc., C.A. No. 23-700-WCB, was not a corporation. He was just a dude . . . named Rheault. The parties disputed whether Rheault could have access to all of the information produced by the defendants in the action, or if there should be some separate attorney's eyes only tier that he was not privy too.
As Judge Bruson noted, a dispute about whether a particular person should have access to the most confidential documents usually depends upon whether that person is a "competitive decisionmaker."
The question whether a particular individual should be allowed access to highly confidential materials has arisen in a number of cases. Such cases often involve the question whether certain employees of a party, such as in-house counsel, should be permitted access to materials with that designation. The answer to that question typically turns on whether the employees in question are involved in competitive decisionmaking on behalf of the party. If so, those employees are typically barred from having access to materials designated as highly confidential. If not, they are often allowed access to those materials.
Rheault v. Halma Holdings Inc., C.A. No. 23-700-WCB, at 2 (D. Del. Dec. 22, 2023) (Mem. Op.)
Here, however, Rheault was a guy. Presumably he makes his own day to day decisions about whether to go to Arby's or Fudruckers (Arby's), but he wasn't involved in the operation of any particular company (the dispute actually centered upon the contract selling his company to the defendants).
Judge Bryson found this point dispositive, at least in the absence of any evidence that he would rejoin the market imminently and compete with the defendants:
Given that there is no evidence that Mr. Rheault intends to resume activity in his former field of business and that the defendants have not shown any other reason why Mr. Rheault should be denied access to the materials designated as “Highly Confidential—Attorneys’ Eyes Only,” I conclude that the defendants have not satisfied their burden of showing entitlement to the restrictive protective order they have requested.
Dauberts, especially of technical experts, are notoriously difficult. An error needs to be pretty blatant for the Court to find that it's not mere grounds for cross-examination. Moreover, it tends to be hard to find something useful to cite in a Daubert brief because the inquiry is often very fact-specific.
Thankfully we have Judge Bryson's opinion in Prolitec Inc. v. ScentAir Technologies, LLC, C.A. No. 20-984-WCB (D. Del. Dec. 13, 2023) (Mem. Op.), which sets forth a pretty bright line rule on a technical failure that warrants exclusion—failure to use a control in an experiment.
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The specific experiment at issue was elegant in its awfulness. The claims required that the lid to a device have a "tortuous passage" that assisted in preventing leakage. To test if the accused product's tortuous passage prevented leakage, the plaintiffs' expert filled up the device, turned it on its side and checked for leaks. Finding none, he opined that the passage prevented leakage.
Judge Bryson noted the obvious flaw in this test and excluded the experts opinion:
ScentAir’s third and most telling objection is that Dr. Hultmark did not also test a device similar to the Breeze cartridge but lacking a tortuous passage, in order to determine whether that device would leak when filled 45 percent full of fragrance oil and placed on its side . . . .Given that there was no control for Dr. Hultmark’s test, the fact that the Breeze product did not leak under those conditions does not show that it was the tortuous passage in the Breeze cartridge that was responsible for the absence of leakage. Because Prolitec has failed to provide a satisfactory answer to this flaw in Testing Configuration 1, I find that the evidence regarding that test would not be helpful to the jury, and the evidence will therefore be excluded.
Id. at 28-29.
That's about as straightforward a Daubert ruling as I've ever seen. I'll hope to cite it myself soon (enemies beware!)
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.
You don't get to pick your jobs in the P.I. biz. A good gumshoe takes what walks in the door, and the only questions he asks are "how much?" and "permanently?" The only answer he'll take is a raised eyebrow and and that money gesture when you rub your thumb against two fingers.
Hamburglar was of the old school. 40 years ago he had a reputation that could make a clown go back into his little car with all his friends and drive off without so much as a honk. When the doc said his arteries were starting to look looked like string cheese, he put that all behind him - hung up his shingle and started trying to solve …
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