A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: COVID-19

Possessed Photography, Unsplash

Chief Judge Connolly issued a memorandum order in the Backertop case today. We talked previously about how the plaintiff in Backertop is an LLC whose sole member is a paralegal who is married to an attorney who works at Mavexar, who gets just 5% of the proceeds of litigating the patents owned by the LLC (the rest goes to Mavexar).

Following a hearing last year, the Court ordered production of various documents, and ordered the owner of the LLC to appear again for a hearing on June 8. She asked to attend remotely due to other obligations.

Today, Chief Judge Connolly denied her request, but rescheduled her appearance for July (the June 8 hearing will still …

Will this be the last time we use our COVID-19 image? I hope so.
Will this be the last time we use our COVID-19 image? I hope so. Fusion Medical Animation, Unsplash

Yesterday, the Judicial Conference announced the end to the exception permitting remote public access during COVID-19:

The COVID-19 emergency is no longer affecting the functioning of the federal courts, the Judicial Conference’s Executive Committee has found, setting in motion a 120-day grace period in which federal courts may continue to provide the same remote public audio access to civil and bankruptcy proceedings as they did during the emergency.
The Executive Committee finding takes effect May 24. The grace period, which ends Sept. 21, relates only to the Judiciary’s temporary broadcasting exception for remote audio public access to civil and bankruptcy proceedings. …

The view as you take off on the redeye after a one-hour deposition of a non-critical witness
The view as you take off on the redeye after a one-hour deposition of a non-critical witness Saman Tsang, Unsplash

At this point, the vast majority of the impact of COVID-19 on the District of Delaware seems to have passed. The Court has entered Phase 4, full return to normal operations. It's becoming uncommon, at this point, to see counsel or Court personnel wearing masks at the courthouse.

The COVID-19 pandemic was obviously a horrible tragedy, but one positive response to it has been the widespread adoption of remote depositions, which are far (far!) more efficient for certain circumstances. If you've ever flown cross-country for a deposition, then boarded the red-eye back immediately after the deposition, you may agree.

But sometimes the other side won't agree to a remote deposition. That's why I found this order from Judge Stark (who it seems is still working hard in Delaware) to be interesting:

ORAL ORDER: Having reviewed the parties' letters regarding a discovery dispute (see D.I. 543, 544), IT IS HEREBY ORDERED that Plaintiffs' request that MSN and Sandoz be required to produce Dr. Reus for an in-person deposition is DENIED. Virtual depositions have been permitted for fact discovery in this case due to the ongoing global health crisis. (See, e.g., D.I. 34 at 13-14) Defendants represent that their expert is at some greater-than-average risk of adverse health consequences were he to contract Covid and Plaintiffs fail to identify any meaningful prejudice that would ...

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 …

Afif Kusuma, Unsplash

Effective today, the District of Delaware lifted its mask mandate for public areas:

1. Effective immediately, masking in public areas of the Court (lobby, corridors, elevators, restrooms, etc.) is no longer required. People may choose to wear a face mask at their discretion. Prior standing orders of the Court that imposed mask requirements are VACATED to the extent, and only to the extent, such orders imposed mask requirements.
2. Judges retain the discretion to impose mask requirements in their courtrooms as they see fit.

Delaware state courts are likewise ending their mask mandate, starting on Wednesday of this week.

In a message to the bar, Delaware Supreme Court Chief …

Fusion Medical Animation, Unsplash

Not all attorneys love remote depositions, even if they are much more convenient and practical in many cases (especially for foreign witnesses). The parties in Supernus Pharmaceuticals, Inc. v. Lupin Limited, C.A. No. 21-1293-MN (D. Del.), an ANDA case, brought two disputes before Judge Noreika about remote depositions:

  1. Whether all parties should be required to make all witnesses available live, instead of via remote deposition; and
  2. Whether all parties, including a defendant who brought counterclaims, should be required to bring their witnesses to the United States for deposition without the other parties having to engage in Hague Convention procedures.

Plaintiff sought to force live, in-person depositions of all witnesses in the …

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

Today, visiting Judge Wolson issued an opinion and order declining to exclude jurors without up-to-date COVID-19 vaccines. The government had requested to exclude those jurors to prevent trial disruptions due to COVID-19.

The opinion was issued in a criminal case, but the language would seem to apply to civil cases as well; the denial was based largely on the difficulty of assembling jury pool in Delaware who are current on their vaccines:

A vaccination requirement along the lines the Government proposes could hamper the Court’s ability to assemble a jury. Current statistics suggest that only 34% of Delaware residents over the age of 18 have received booster shots. 1 That includes 65% of those who are over the age of 65, many of whom are not part of the jury pool because of their age. The result of excluding from the jury pool a large number of people with a high vaccination rate will be to lower the rate of people over the age of 18 in the remaining pool. There could be additional members of the jury pool who are eligible because they received their vaccinations recently. But in any event, the numbers suggest that a vaccine requirement along the lines the Government proposes would exclude nearly 2/3 of potential jurors from the jury pool.

The Court also noted that jury service is an important right ...

Isaac Quesada, Unsplash

February Jury Trials

After completing all planned December jury trials uninterrupted by COVID-19, the January docket became lighter after the Court continued several trial dates to later this year due to COVID-19 concerns. One of these continued trials, a patent case, was rescheduled to February; the Court also has three other jury trials on the calendar for next month.

In December, the Court reauthorized the use of video and telephone conferencing pursuant to the CARES Act. Relatedly, Governor Carney reinstituted a mask mandate, requiring individuals in Delaware to wear masks while in public spaces, with select exceptions.

Review of December Jury Trials

In our November update, we identified five upcoming December jury trials. Three proceeded as …

Traffic Congestion
Randy Lisciarelli, Unsplash

It's not all that common for judges in the District of Delaware to deny requests to reschedule hearings. But last week we saw two requests denied. And, in both instances, the Court suggested that the party requesting cancellation should just have another attorney prepare for argument rather than rescheduling.

In one instance, Judge Andrews denied a request to reschedule a Markman hearing, stating that:

ORAL ORDER: The request to change the date of the Markman . . . is DENIED. Plaintiff has at least three non-Delaware lawyers. Simply because one of them has a trial scheduled on December 9th is not a reason to change the date of the Markman. There is plenty of time …

This year's November begins on a Monday.
Theodorus van Hoytema

Remaining October Jury Trials

  • 10/25/2021: Boston Scientific Corp. v. Nevro Corp., C.A. 18-644-CFC-CJB (D. Del.): This patent jury trial is calendared to start on October 25 before Judge Connolly.
  • 10/25/2021: CareDx, Inc. v. Natera, Inc., C.A. 19-662-CFC-CJB (D. Del.): The parties in this trademark case will begin jury trial before Judge Connolly on October 25.

Upcoming November Jury Trials

One patent case has a long-standing trial date that appears intact, but another patent case appears close to settling.

  • 11/01/2021: Novel Drug solutions, LLC v. Harrow Health, Inc., C.A. 18-539-MN (D. Del.): Defendant proposed rescheduling the pretrial conference for an earlier date, to which the Plaintiff agreed (D.I. 368), but Judge Noreika declined the rescheduling. D.I. 369. This contract case is set to proceed for five days on November 1.
  • 11/01/2021: Shure Incorporated v. Clearone, Inc., C.A. 19-1343-RGA-CJB (D. Del.): Judge Andrews has resolved multiple merits issues (D.I. 571; D.I. 619; D.I. 621) after adopting the Magistrate Judge’s recommendations to deny most of the parties' dispositive motions. The case still appears on track to proceed to trial. ...