A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: litigation

It's interesting that the Court is now regularly offering public access information for remote hearings. I can't recall it doing that before the coronavirus.

The only pre-coronavirus remote hearings I can think of were for scheduling and discovery dispute conferences, where public access is not usually a concern. Scheduling conferences often took place privately in chambers even when they were in-person, and discovery dispute conferences often involve confidential information anyway. It looks like they judges are still handling these how they always have.

These days, however, the Court regularly holds all kinds of other, more substantive hearings remotely, and most of the judges have been taking steps to allow the public to attend. Here is what the judges have been …

Judge Connolly today struck portions of an expert report where the expert opined that the accused product did not infringe because it included extra components in addition to what was claimed in a means-plus-function claim element.

This is contrary to the well-established principle that additional structure does not preclude infringement of an MPF claim element, if the required structure is also there.

Here is an example of the excluded text, as quoted by the Court:

Dr. Vallee points, without much explanation, to various structures on the JoistPro' s safety mechanism as allegedly meeting the required structure of the claimed "push portion[."] However, Dr. Vallee fails to explain how his identified [structures] work together to achieve the function of the claimed …

Artists' rendering of the anonymous letter
Artists' rendering of the anonymous letter Brando Makes Branding, Unsplash

Chief Judge Stark today rescheduled the Xcoal trial for Wednesday of next week. The trial was previously derailed following receipt of an anonymous letter just after opening statements.

The opinion (embedded below) has a great summary of the facts of the trial so far, which are very unusual.

In resuming the trial quickly, he hoped to deter others from sending similar "anonymous letters" to interfere with other trials. He also noted that this is the only time the Court will have available for bench trials in the near future, because of the backlog of criminal and civil jury trials which should start back this month:

[T]his District hopes and …

Empty Chair
Giorgio Trovato, Unsplash

Sometimes people think that they have to offer expert testimony to rebut the other side's expert on every single issue. That's not true, at least when the other side has the burden of proof.

I've represented a defendant in a jury trial representing where we offered no damages expert at all, and it worked out well (under the circumstances—I'm definitely not saying it's a good general strategy). We poked holes in the opposing expert's theories, and the other side had no way to return fire and no reply report in which the fix the issues.

Judge Andrews addressed something like that last week in an opinion on a motion in limine. Defendant had offered expert …

Last week I wrote about the Xcoal breach-of-contract bench trial, which was adjourned after opening statements due to an "anonymous letter" discussed at a sidebar.

The Court has now unsealed the transcript of that sidebar, which includes the contents of the "anonymous letter" (as read into the record).

It turns out that the letter, signed "Xcoal whistleblower" and sent to defendants' counsel, alleges that plaintiff Xcoal's founder had planned to "cause a default" on the contract at issue, so that the company could collect on a $10 million guarantee that was part of the contract.

It alleges that he planned "to cause default by delayed coal shipments, withhold payments, and extract penalties from [defendant] Bluestone."

The contract involved lab …

Artist's rendering of the
Brando Makes Branding, Unsplash

The trial in Xcoal Energy & Resources v. Bluestone Energy Sales Corp., C.A No. 18-819-LPS (D. Del.) was adjourned this morning following receipt by the parties of an "anonymous letter." The trial had started yesterday, after the Court previously overruled Xcoal's due process objections to a remote trial.

All of the discussion of the letter was at sidebar, so its contents are not yet public. But it must be something interesting!

The parties had asked for a sidebar immediately after opening statements yesterday. Counsel mentioned that the situation is like "something out of a John Grisham novel."

At the sidebar, they read the "anonymous letter" into the record, and both parties …

Today, Chief Judge Stark posted a public Zoom link for a bench trial starting Tuesday morning:

The bench trial is available to the public by telephone, using dial in: 1−703−552−8058 Code: 944408, or by video, using the following link: https://trialgraphix.zoom.us/j/93843275500, Meeting ID: 938 4327 5500 and Passcode: 974842. Audio or video reproduction of the proceeding is strictly prohibited.

This is a competitor case involving a contract for the delivery of coal—it's the one where the defendant attempted to delay the trial using due process arguments. Trial is scheduled to start Tuesday and run through Friday:

  • Tuesday, August 25: 9 am to 5 pm
  • Wednesday, August 26: 9 am to 5 pm
  • Thursday, August 27: 8:30 am to 10 …