A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: KB

Pictured: The poor associate, who writes the briefs, carts the boxes, and dutifully passes polite notes up as the partner mangles the argument
Pictured: The poor associate, who writes the briefs, carts the boxes, and dutifully passes polite notes up as the partner mangles the argument AI-Generated

One question I've seen from time to time is "what should we bring to the hearing?" Not "how should we prepare," but what physical stuff should litigators bring on the day of a hearing or oral argument?

I thought it would be useful to post a checklist—both for you, our readers, and so that I can send it around in response to future questions.

The checklist below should be considered ideas for what to bring. Practiced litigators undoubtedly already have their own systems, and every hearing is different. You should not bring everything below to every hearing. This list is instead meant as a last-minute, "I'm about to head out the door, is there anything else I should bring?" checklist to spark ideas.

Note that this is geared towards oral argument in patent cases in the District of Delaware, but much of it is applicable to other kinds of hearings ...

Bookmarks
Chiara F, Unsplash

I thought I'd share an old transcript that has come in handy a number of times since it issued back in 2013, where Judge Andrews made a helpful ruling about how and when patentees must respond to conception date interrogatories—an issue that comes up frequently.

In Vehicle Interface Techs., LLC v. Jaguar Land Rover N. Am., LLC, C.A. No. 12-1285-RGA (D. Del.), the defendant filed a discovery dispute to compel a full response to an interrogatory asking for the date of conception and reduction to practice.

The patentee had responded, but the answer was not very helpful. According to the discovery dispute letter:

[The patentee] stated that the sole inventor . . …

This is definitely not a District of Delaware courtroom. But you get the idea...
This is definitely not a District of Delaware courtroom. But you get the idea... David Veksler, Unsplash

Under the D. Del. local rule 7.1.4, a written request for oral argument is due seven days after the reply brief on a motion.

According to the rule, the Court may or may not schedule oral argument on receiving a request—and may schedule argument even if it is not requested:

Oral argument on any motion may be scheduled upon the application of a party, or sua sponte by Court order.

That leads to a common question, "Should we request oral argument on our motion?"

The short answer is: yes, if you want oral argument. The Court is going to schedule …

candice-seplow-rd27HO_IJSo-unsplash
Candice Seplow, Unsplash

Since the Court suspended its mediation program, parties have noticed that the District of Delaware lacks an established pool of local mediators who are available to mediate patent cases.

As I mentioned a while back, I wanted to put together a list to help match attorneys and clients with mediators who have District of Delaware patent-case experience. I've now heard from multiple D. Del. mediators and attorneys about who people are using, and I put together this list.

Spoiler alert: It's a short list. My primary criteria were: local or nearby, active, and experienced in patent cases or patent case mediations. Even so, there are just not a ton of names, and people largely …

Caution Tape
Hiroshi Kimura, Unsplash

A reader helpfully flagged a stipulation denial by Judge Noreika last week (thank you!). The parties had a pretrial conference scheduled for July 18, 2022, and stipulated to move a number of deadlines, including for Daubert briefing. They moved the Daubert motion reply deadline from May 20, 2022 (52 days before the PTC) to June 10, 2022 (38 days before the PTC).

Judge Noreika denied the stipulation without comment. They smartly refiled, but without the Daubert deadline adjustment. This time it went through just fine, albeit with a comment stating that the Daubert deadlines were not moving:

SO ORDERED re 192 STIPULATION TO EXTEND TIME . . . IT IS FURTHER ORDERED that the Daubert motion/briefing schedule set by D.I. 134 shall NOT be extended ...

Waste Basket
Gary Chan, Unsplash

It's a bit of a slow news day for the subjects we typically cover, so I wanted to write about an exciting and under-covered topic: Certificates of Service in the District of Delaware!

A Certificate of Service (COS) is a document at the end of the filing that says who the document was served on. Back in the days of paper filing, it was important to show who received a copy of a document.

Now we have CM/ECF, the Court's electronic filing system, which automatically generates a Notice of Electronic Filing (NEF) when anything is filed. Federal Rule of Civil Procedure 5(d)(1)(B) specifically says that "[n]o certificate of service is required when a paper is served …

We mentioned earlier this week that "plain and ordinary meaning" (sometimes shortened as "plain meaning" or "ordinary meaning") is the default in claim construction. But what is it?

As the Federal Circuit has said, plain and ordinary meaning is the meaning of a phrase to a person of skill in the art:

The ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application. . . . The inquiry into how a person of ordinary skill in the art understands a claim term provides an …

Chalkboard Math
Roman Mager, Unsplash

By default, patent cases in Delaware are typically scheduled for a five-day jury trial in the initial scheduling order. Sometimes, however, it seems that parties don't give any further thought about what the actually means until they need to file a pretrial order much later in the case.

Delaware jury trials are strictly timed. Those who are less familiar with how jury trials typically go may expect that they'll have more time than they really will. A simple back-of-the-envelope calculation by someone who is not in-the-know might be:

40 hours per week / 2 sides = 20 hours per side

That would be wrong. The actual, practical number of hours per side for a five-day patent …

Not this declaration
Not this declaration Engraving by William J. Stone

Declarations are commonplace in federal court litigation. They are submitted by attorneys, by experts, and by parties or their agents. Their purposes range from simply listing exhibits to establishing critical facts. But what language is required for an unsworn declaration? And are declarations always necessary in D. Del.?

Unsworn Declarations In General

The vast majority of declarations submitted in federal court litigation are actually "unsworn declarations" which, by statute, a litigant may submit in place of a sworn declaration or affidavit.

Don't Forget the Required Language

In particular, 28 U.S.C. § 1746 provides that ...

You may not realize the dangers with certain stips.
You may not realize the dangers with certain stips. Andrew E. Russell, CC BY 2.0

It was a bit of a slow week as far as opinions from the District of Delaware, so I wanted to write a short post about stipulations, covering a few questions that sometimes come up.

What Can You Do by Stipulation in D. Del.?

In the District of Delaware, most litigation-related matters or facts can potentially be stipulated to. This includes, most commonly, extensions of deadlines. Parties routinely file, and the Court routinely grants, stipulations extending time for things like answer deadlines, deadlines to file a scheduling order, and protective order deadlines. Parties likewise routinely stipulate to the amendment of pleadings, FRCP 41 dismissals, …