A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: Early SJ

Last month we wrote about Chief Judge Connolly's comments on the "sad reality" of referrals of SJ motions to a magistrate judge in patent cases:

[T]he sad reality in patent cases filed in this district is that a referral of a summary judgment motion [for an R&R] pursuant to § 636(b)(l)(B) inevitably results in objections to the magistrate judge's report and recommendation, which the district court judge must review de novo. Such a referral therefore ends up doubling the amount of judicial resources needed to resolve the summary judgment motion in question. For that reason, I no longer make § 636(b)(l)(B) referrals of summary judgment motions in patent cases to a magistrate judge.

He noted at the time …

Leave to file early summary judgment is not often granted in this District. The circumstances in which the Court may permit early SJ are usually narrow: for example, where a question of law appears to be dispositive of the entire action, and/or where the moving party agrees to forego its ability to file a motion on the same grounds later.

It is safe to assume that openly violating the Court's scheduling order right before you ask to file an early motion for summary judgment of invalidity under Section 101 will not increase your chances of success.

Last week in Johnson Controls Technology Company v. BuildingIQ, Inc., C.A. No. 20-521-MN, Judge Noreika forcefully rejected the defendant's request to file such a motion just days after the defendant had stonewalled during the claim construction process, causing the parties to miss the to file the joint claim construction chart deadline.

After the deadline passed, the Court ordered that...

Kenneth Schipper Vera, Unsplash

Judge Andrews recently rejected the requests of several defendants in a Hatch-Waxman (or "ANDA") case to file an early motion for summary judgment, calling the request a "pig in a poke."

Judge Andrews, like most judges in this District, does not as a matter of course permit dispositive motions in ANDA cases or early dispositive motions in general. Nonetheless, two defendants in Astrazeneca AB v. Alembic Pharms. Ltd., C.A. No. 20-202-RGA, sought leave to file an early motion for summary judgment of no infringement under the doctrine of equivalents (plaintiff's only infringement theory).

Judge Andrews made short work of the request, first noting that the

defendants do not make a …

Wolf in the Forest, Philipp Pilz, Unsplash

I don't have the full transcript, but based on quotes set out in a letter filed by the parties, Judge Connolly recently set forth his thoughts on the kinds of issues he is willing to address early in the case:

Now, what I try to do when I think there's kind of a silver bullet, I move it to the top of the pile. That's what I do on indefiniteness.

According to the letter, Judge Connolly was prepared to stay the case and expedite summary judgment briefing on indefiniteness if it was case dispositive. Defendant declined that offer in a letter after the hearing.

Judge Connolly also suggested that he …