A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Congestion

5-Body Problem

Nathan R. Hoeschen, June 13, 2024
Meet-and-Confer Discovery Dispute

Bringing a discovery dispute is a bit of a 3-body problem. At any given time, you've probably got a half dozen complaints with what the other side is doing. When one boils over into a dispute you have to grapple with whether you should just bring all of them—and risk looking unreasonable—or just address the most pressing and risk having to raise serial disputes, which might look even worse. The push and pull can quickly become insoluble.

Guillermo Ferla, Unsplash

Luckily, we got an Order from Judge Burke this week that should make this calculus slightly easier going forward.

The defendants in Bardy Diagnostics, Inc. v. Vital Connect, Inc., C.A. No. 22-351-CFC-CJB, D.I. 97 (D. Del. June 11, 2024) (Oral Order) brought the first discovery dispute of the case (by either party) via judge Burkes usual procedure of filing a letter listing the disputes.

The disputes read as the usual humdrum list of custodians not searched and rogs insufficiently answered. The only thing out of the ordinary, is that there were 5 of them included in the letter.

Judge Burke responded to the request for a teleconference the next day with ...

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Judge Noreika Denies § 101 Motion Without Addressing Merits Where Scheduling Order Permits Assertion of Additional Claims

Andrew E. Russell, May 10, 2024
MTD Motion to Dismiss

Pixelated Game Over screen on an oversized PAC-MAN arcade machine
Sigmund, Unsplash

Judge Noreika issued an interesting order yesterday denying a § 101 motion to dismiss. According to the docket, shortly after the defendant filed its motion to dismiss—and contrary to what we found when we last looked at this—the Court directed the parties to meet-and-confer on a proposed schedule.

While the motion to dismiss was pending, the Court held a scheduling conference and issued a scheduling order. In it, the parties agreed to a real case narrowing proposal (without court intervention!), with plaintiff to initially cut back to 20 asserted claims per patent and 50 total by initial contentions, and then further cut back to 25 total just before final contentions.

After the Court entered the schedule, …

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Nine Motions to Strike Is Seven Too Many

Andrew E. Russell, April 22, 2024
Motion to Strike Congestion

"They brought four motions to strike? We better bring 5!" AI-Generated, displayed with permission

There was an interesting order last week in Cleveland Medical Devices Inc. v. ResMed Inc., C.A. No. 22-794-JLH (D. Del.).

The parties filed a letter initiating a discovery dispute conference with the Court. These letters must include non-argumentative descriptions of each dispute the parties raise with the Court. Here, the letter listed a total of nine motions to strike expert reports, including five from the plaintiff and four from the defendant.

Typically the Court reviews these letters and sets a date for a conference and for briefing on each sides' issues. Here, however, the Court took issue with the extraordinary number of …

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Judge Hall Rejects Request to Impose Summary Judgment Motion Ranking, Expands Page Limits

Andrew E. Russell, April 8, 2024
Summary Judgment Ranking

Continuing our eclipse theme
AI-Generated, displayed with permission

Most of the judges in the District of Delaware have settled on page limits for summary judgment and Daubert motions in patent cases of 250 total pages: 50 pages opening, 50 pages answering, and 25 pages reply—per side.

The "per side" part is important, and it can have a significant impact on cases with multiple unrelated defendants or defendant groups.

The Court has usually resisted expanding these limits, and in many cases, has instead experimented with ways of reducing the burden on the Court. Judge Noreika, for example, has sometimes required parties to seek leave before filing summary judgment motions.

Chief Judge Connolly has instituted a "ranking" procedure in his cases to help deter meritless …

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In Response to Objection That Discovery Dispute is Premature, Judge Burke Orders Parties to Meet-and-Confer for a Set Number of Hours, and Explains How to Meet-and-Confer

Andrew E. Russell, Jan. 10, 2024
Discovery Disputes Discovery Dispute

"Counsel, go stand in the corner until you figure out what 'collegiality' means." Mag Pole, Unsplash

Several District of Delaware judges have discovery dispute procedures that require parties to first file a letter stating that the parties have met and conferred but are unable to resolve some disputes, and list the disputes.

This usually works out well, but a few issues can occasionally come up with this procedure. For example:

  1. One party refuses to meet-and-confer, forcing the other side to file solo.
  2. The parties have met and conferred to death, but one party refuses to sign the the joint letter anyway (or just refuses to respond), solely for the purpose of delay.
  3. One or more parties jump the gun, …
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The Court Has Started Re-Assigning Cases to Incoming Judge Hall

Andrew E. Russell, Jan. 8, 2024
Nomination Congestion

District Court Seal

We mentioned back in October that Judge Hall was confirmed to the District of Delaware. Today, the Court started re-assigning cases from existing judges to Judge Hall. These arrive as a simple one-sentence docket entry:

Case Reassigned to Judge Jennifer L. Hall. Please include the initials of the Judge (JLH) after the case number on all documents filed.

The re-assignments involve cases at multiple stages, including past the close of fact discovery, and cases where Judge Hall was not previously involved as a magistrate judge.

One common question I see is "why did our case get re-assigned"? We can all speculate, but I'm not sure it's safe to read anything into a re-assignment like this beyond "our case was re-assigned …

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Will the Court Still Refer a Patent Case for Mediation? Maybe.

Andrew E. Russell, Dec. 18, 2023
Mediation Congestion

It's impressive when an attorney files a short letter and gets the Court to do something that it is not often inclined to do.
It's impressive when an attorney files a short letter and gets the Court to do something that it is not often inclined to do. Immo Wegmann, Unsplash

The District of Delaware generally suspended its mediation program in 2021, and mediations before a magistrate judge rarely happen in patent cases these days (although they do sometimes happen in some other cases, such as employment cases).

Since then, parties have sometimes moved to private mediations—especially when ordered to—but generally in my experience the overall number of cases that go through mediation has declined, and there aren't a huge number of local patent-case mediators.

When we last discussed this, we noted from comments at the 2023 Bench and Bar conference that …

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Chief Judge Connolly Denies Daubert Motion Regarding Five Experts, Holding That Party Should Have Filed Five Separate Motions

Andrew E. Russell, Dec. 13, 2023
ETSI Congestion

Five Candles
Steve Johnson, Unsplash

Chief Judge Connolly's scheduling order requires parties to rank their Daubert motions, and gives the Court the discretion to automatically deny all lower-ranked motions if it denies any one motion. In other words, if a party files five Daubert motions, and the Court grants the first-ranked motion but denies the second, the Court can then deny motions three, four, and five:

If the Court decides to deny a motion filed by the party, barring exceptional reasons determined sua sponte by the Court, the Court will not review any further Daubert motions filed by the party.

It has a similar provision for summary judgment motions Thus, it's important that parties split up their motions and rank them. …

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Do You Want to Be a D. Del. Magistrate Judge?

Andrew E. Russell, Nov. 17, 2023
Congestion DED

Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Wilmington, DE Andrew Russell, CC BY 2.0

The District of Delaware is looking for its next magistrate judge!

The formal requirements to become a magistrate judge, as set forth in the announcement, are actually fairly easy to meet:

To be qualified for appointment an applicant must
(1) Be, and have been for at least five years, a member in good standing of the bar of the highest court of a state, the District of Columbia, the Commonwealth of Puerto Rico, the Territory of Guam, the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States, and have been engaged in the active practice …
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Court Denies § 101 Motion, Holding That "address[ing] § 101 issues in . . . seriatim . . . is not a good use of the Court's time"

Andrew E. Russell, Oct. 25, 2023
Motion to Dismiss Congestion

Terracotta Warriors
Aaron Greenwood, Unsplash

Along the lines of on Friday's post, Judge Noreika issued an order in a different case this week denying a § 101 motion because it addressed only a subset of claims, and suggested that more claims may be asserted:

ORAL ORDER re (10 in 1:23-cv-00174-MN) (9 in 1:23-cv-00220-MN) MOTION to Dismiss - Defendants have filed motions to dismiss for failure to state a claim, arguing that claim 1 in two of the four asserted patents is directed to ineligible subject matter under 35 U.S.C. § 101. . . . Defendants state in a footnote that they are not addressing other claims, but that very same footnote suggests that the Court may face additional § 101 arguments in the future should Plaintiff add further asserted claims from the two patents at issue in the motion and that the Court may also later have to address § 101 with respect to the remaining two patents not subject to the present motion. (C.A. No. 23-220, D.I. 10 at 2 n.2). Given that Defendants' § 101 motions suggest that the Court will be forced to address § 101 issues in this case seriatim and because doing so is not a good use of the Court's time, IT IS HEREBY ORDERED that Defendants' motions to dismiss are DENIED without prejudice to renew as appropriate during summary judgment. ORDERED by Judge Maryellen Noreika on 10/23/2023.

AlmondNet, Inc. v. Freewheel Media, Inc., C.A. No. 23-220 (D. Del. Oct. 23, 2023).

What was in the footnote? An admission that the motion doesn't resolve all of the claims:

This motion is directed to only two claims—claim 1 of the ’307 patent and claim 1 of the ’249 patent—because they are the only claims of those patents that the Complaint alleges Defendants infringe. . . . While Plaintiffs could conceivably assert other claims of the ’307 and ’249 patents if the Court grants this motion, they would do so at their peril because those other claims add only incidental limitations to the two at issue here. Thus, resolution of this motion will likely dispose of two of the four asserted patents in this case. Moreover, because Plaintiffs’ patents are all similar—and all face similar obstacles under Section 101—Defendants believe that deciding this motion now will streamline and promote resolution of this entire case, and possibly of other AlmondNet cases as well, since they involve similar or overlapping patents. . . . Accordingly, Defendants believe that deciding this motion now, at the Rule 12 stage, will be an efficient use of the Court’s resources.

Id., D.I. 10 at 2 n.2.

This outcome is not unusual, but it's definitely something to keep in mind when evaluating ...

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