A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: KB

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, …

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

Being a notorious font of local wisdom, I am often asked whether Judge X or Y will entertain indefiniteness at Markman. Well here you have it faithful readers—everything you need to know about raising indefiniteness at Markman in Delaware

Most Delaware District Judges Will Allow Briefing and Argument on Indefiniteness at Markman

Judge Sleet rather famously did not entertain indefiniteness arguments at Markman, considering it “an attempt at an end-run around the court's scheduling order regarding the filing of dispositive motions [that] will not be sanctioned.” Pharmastem Therapeutics, Inc. v. Viacell, Inc., No. 02-148 GMS, 2003 WL 124149, at *1 n.1 (D. Del. Jan. 13, 2003). He frequently referred to this prohibition …

Sit back, relax, and enjoy this long post about <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='United States District Court for the District of Delaware'>D. Del</a>. local rules...
Sit back, relax, and enjoy this long post about D. Del. local rules... XPS, Unsplash

The District of Delaware's local rules are available on the court's website, but they don't tell the whole story—there are a number of critical rules and practices set forth in other documents that are not as obvious on the site.

These can really trip you up if you're not familiar with D. Del. practice.

This post is geared towards mainly towards out-of-town or in-house counsel. It covers the basics and then lays out where to find some of those other important rules if you have a …