We all know what ellipses (". . .") mean, right? It means that something in a quote was omitted. According to Bluebook Rule 5.3:
“Omissions of a word or words is generally indicated by the insertion of an ellipsis, three periods separated by spaces and set off by a space before the first and after the last period (“♦.♦.♦.♦”), to take the place of the word or words omitted. Note that “♦” indicates a space.”
In yesterday's lengthy Mavexar opinion, however, Chief Judge Connolly pointed out that ellipses in a transcript can mean something else entirely. They are to be used to
reflect the fact [that the witness] trailed off and was silent for a …
Judge Burke issued an oral order earlier this week with some interesting language criticizing the party's attempt at an amended complaint.
In Midwest Energy Emissions Corp. v. Arthur J. Gallagher & Co., C.A. No. 19-1334-CJB (D. Del.), the plaintiff accused a very large number of entities—More than 50, it looks like—with infringement of a number of patents, all in a single combined action.
Earlier this year, it moved to amend its complaint to add additional defendants it alleged were parent companies of defendants who were as acting as the parent companies' "alter egos and agents." Judge Burke granted this request as to one party, for which the complaint included more detailed factual allegations, …
You're drafting a brief in D. Del., and you're not sure what it's supposed to look like. You're in luck! The local rules tell you exactly what sections you need to include in an opening or answering brief (see LR 7.1.3(c)(1) for more detail):
Two tables (a table of contents and a table of authorities).
"A statement of the nature and stage of the proceedings."
"A summary of argument, setting forth in separately numbered paragraphs the legal propositions upon which the party relies."
"A concise statement of facts, with supporting references to the record, presenting the background of the questions at issue."
"An argument" with "appropriate headings distinctly setting forth separate points."
In a trade secret dispute over THC remediation processes, Judge Hall recently denied a hemp processing company's motion for a preliminary injunction. The redacted version of her opinion came out yesterday, and it gives some helpful guidance for parties litigating trade secret disputes. It also touches on an important tip for legal writers everywhere.
As usual, one of the key questions was whether the plaintiff adequately identified the trade secrets at issue. This requires a careful balancing act—the trade secret needs to be broad enough to cover what the defendant is doing, but narrow enough to qualify for trade secret protection in the first place.
In trying to walk this line, lawyers are often tempted to use terms like "and/or" to keep their options open. In this case, the plaintiff used "and/or" in defining the scope of two of its alleged trade secrets. This ended up playing an important role in Judge Hall's likelihood-of-success analysis:
Starting with (1), SCB’s definition is not only general, it uses the modifier “and/or,” which suggests to the Court that SCB is attempting to claim as a trade secret the idea of oxidizing THC into CBN. If so, the Court rejects it. As SCB acknowledged at oral argument, the process of oxidation, and more particularly the fact that THC oxidizes into CBN, was well known in 2019.
. . .
Although SCB’s position is not entirely clear, its use of the “and/or” modifier in its interrogatory response suggests that it might be seeking to claim as trade secrets each of the individual “parameters and conditions” set forth in its interrogatory response and every possible permutation. As Defendants’ expert points out, that's 57 potential combinations of trade secrets. (D.I. 47 ¶¶ 29, 30.) SCB does not provide separate argument as to any particular permutation, making it impossible for the Court to determine which combinations of “parameters and conditions” it intends to press.
Law360 published an article yesterday by Carrie Garrison about an "exciting shift in the legal world," after Justice Thomas used the parenthetical "(cleaned up)" in a SCOTUS opinion:
Under that doctrine as it existed in 1946, a judgment is “on the merits” if the underlying decision “actually passes directly on the substance of a particular claim before the court.” Id., at 501–502 (cleaned up).
This parenthetical, as Ms. Garrison points out, was suggested in 2017 as an alternative to longer parentheticals like "(internal quotation marks omitted)" under Bluebook Rules 1.5 and 5.2.
This sounds like a great way to save some space, particularly in light of the ongoing adoption of word limits by the District of Delaware …
Judge Andrews just issued some tough guidance for parties thinking about filing R&R objections in D. Del.
The entire order is worth a read, but the most interesting tidbit is in the first footnote. Magistrate Judge Burke issued an R&R on a motion to dismiss, where he recommended dismissing the plaintiff's indirect infringement claims (without prejudice) and denying the defendant's § 101 motion.
Judge Andrews wasted no time overruling the plaintiff's objection to the dismissal of its indirect infringement claims, noting that:
Plaintiff’s argument has no impact on this case; Defendant wisely did not waste paper filing a response.
Although Judge Andrews spent more time discussing the defendant's objections, he quickly dispatched several arguments that were raised only …
In a design patent dispute between Shure and ClearOne over microphone arrays, Magistrate Judge Burke recently issued an R&R recommending denial of a preliminary injunction.
The denial itself isn't surprising—in D. Del., these motions are denied far more often than not. But the R&R sheds some helpful light on how you can make your motions stronger.
First, make sure your theme matches your facts. Although the plaintiffs claimed that the defendant's sales were "surging," Judge Burke found the opposite. The exact sales numbers are redacted, but they were enough for Judge Burke to conclude that "as of July 2020, it is Shure’s sales that were surging; ClearOne’s were not." You can't …
When one prior art reference incorporates another, parties often prefer to argue that they form a single reference under an anticipation analysis, rather than asserting them as an obviousness combination. After all, who wants to deal with motivation to combine and secondary considerations of non-obviousness if they don't have to?
But there is a risk. The primary reference truly has to incorporate—not just cite—the secondary reference, which not the most common situation. If the first reference merely cites the second, the court will likely find that they cannot be treated as a single reference.
Judge Andrews addressed that situation this week, when faced with a Daubert motion to strike an expert opinion that treated two references as one in its …
Speaking of MILs, Chief Judge Stark recently denied two motions that were, "in reality, motions for summary judgment" masquerading as MILs. Xcoal Energy & Res. v. Bluestone Energy Sales Corp., C.A. No. 18-819-LPS (D. Del. Aug. 3, 2020).
The motions were framed as MILS to exclude evidence on the defendants' "fraud-based claims and defenses" and their claim for lost profits. But they actually sought "judgment on particular claims and defenses[,]" and they didn't even mention the Federal Rules of Evidence.
The judge denied the motions outright, explaining that:
“[M]otions in limine should not be used as disguised motions for summary judgment.” Brown v. Oakland County, 2015 WL 5317194 at *2 (E.D. …
Delaware corporations always face an uphill battle when moving to transfer. In patent cases, most of the transfer factors tend to be neutral, and the plaintiff's choice of forum is given significant weight. So it's important to make a strong showing on the handful of factors where a defendant can move the needle.
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
