A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Litigation

The Magistrate and the Clock

Nathan R. Hoeschen, June 16, 2021
Motion to Stay Litigation

insung-yoon-w2JtIQQXoRU-unsplash.jpg
Alarm Clock, Insung Yoon, Unsplash

Delaware judges routinely refer motions to one of our four regular magistrate judges. This is no surprise in a court with such a busy docket, especially when so many of our cases are complex patent matters.

One question I'm frequently asked when a matter is referred to a magistrate judge is "how will this affect the decision time?" It's a sensible question, and one might imagine that a referral from a busy Article III judge to a magistrate judge might result in a quicker resolution. The answer, however, appears to be that magistrate judges take about the same amount of time to resolve issues as the Article III judges.

Looking at a commonly referred …

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Judge Connolly Institutes New Summary Judgment Procedures to Deter Meritless Motions

Andrew E. Russell, April 30, 2021
SJ Litigation

In a new standing order today, Judge Connolly announced a new procedure for SJ motions in patent cases. Going forward, he will require parties in all patent cases (current and future) to rank their summary judgment motions, and if any motion is denied, he will generally deny all lower-ranked motions as well:

1. A party that files more than one summary judgment motion shall number each motion to make clear the order the party wishes the Court to consider the motions in question. The first motion the party wishes the Court to consider shall be designated #1, the second motion shall be designated #2, and so on.
2. The Court will review the party’s summary judgment motions in the …
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New Federal Rule of Appellate Procedure 3 Regarding Contents of a Notice of Appeal

Andrew E. Russell, April 21, 2021
Litigation FRAP 3

A peel can be a trap for the unwary.
A peel can be a trap for the unwary. Jake Nackos, Unsplash

I saw on the Civil Procedure & Federal Courts Blog that the Supreme Court adopted an amended FRAP 3 last week.

The new amendment is focused on getting rid of some pitfalls in the previous procedure for filing a notice of appeal.

The old rule required a party to file a notice of appeal identifying the "judgment, order, or part thereof" that it is appealing. As explained in the comments to the amendment (embedded below), some courts interpreted that language strictly to hold that a party who named a specific order waived their right to otherwise appeal the judgment:

Whether due to misunderstanding or a misguided attempt …
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Judge Connolly Compliments Attorney's Behavior, Advises That "All Counsel Would Do Well to Follow His lead"

Andrew E. Russell, April 12, 2021
Litigation Oral Argument

High Five
High Five Jonas Vincent, Unsplash

Judge Connolly put this oral order on the docket on Thursday:

ORAL ORDER: The Court has read Plaintiffs' April 7 letter . . . . The Court understood Mr. Groombridge's response to be in substance what Plaintiffs outline in their letter. The Court asked an imprecise question. But the Court had in mind what Mr. Groombridge had in mind. Mr. Groombridge has appeared before the Court on numerous occasions and the Court appreciates and respects his practice of conceding points he should concede and getting to the heart of the disputed matters before the Court. All counsel would do well to follow his lead in that regard.

Amgen Inc. v. Hospira, Inc., C.A. …

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Where to Find the OTHER District of Delaware Local Rules

Andrew E. Russell, March 20, 2021
CM/ECF KB

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 …

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A Successful Letter Asking the Court to Rule More Quickly on a Pending Motion

Andrew E. Russell, March 8, 2021
Litigation Motion to Amend

Envelope with Letter
Brando Makes Branding, Unsplash

One common question for local counsel is "can we file something asking the Court to rule on our motion"? And the answer is usually something along the lines of "no," except in certain situations.

Last week we wrote about an example of the risks of an unwarranted request to expedite consideration of a motion.

This week I saw an example of a letter near the other end of the spectrum, in which a party asked gently urged the Court to consider a pending motion and got a good result.

A Letter That Worked

Plaintiff had moved for leave to amend their complaint to add two patents to a five-patent case, where all of the …

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Can You Serve Process on a Foreign Defendant by Email? Maybe.

Jeff Castellano, Feb. 9, 2021
Litigation FRCP 4

Service of process on a foreign defendant can be tricky. If the foreign defendant will not agree to waive service under Rule 4(d), a plaintiff is left with methods of service under Rule 4 that are often complex and time-consuming, and come with no guarantee that the service will ultimately be effective.

And while Rule 4 does not set a deadline for service of process on foreign defendants, as it does for domestic defendants, the time to serve is not unbounded. Helpfully, Rule 4 provides a fallback that opens up the door to other--perhaps less onerous--methods of service, including simply sending an email (in the right circumstances).

When Can You Serve by E-mail?

She just served a defendant in Taiwan
She just served a defendant in Taiwan Brooke Cagle, Unsplash

Last week Magistrate Judge Hall permitted service on a foreign defendant by email pursuant to FRCP 4(f)(3), which provides that, in addition to various other methods of service, service of process may be achieved "by other means not prohibited by international agreement, as the court orders."

As Judge Hall recounted, plaintiff DivX LLC first attempted service by certified mail on Taiwanese defendant Realtek Semiconductor Corp., but Realtek apparently refused to accept the mail delivery. ...

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FRCP 30(b)(6) Amended; Still Doesn't Provide Rules for Objections

Andrew E. Russell, Feb. 8, 2021
Depositions Litigation

FRCP 30 was amended in December 2020 to add a meet-and-confer requirement:

FRCP 30(b)(6) Amendment
U.S. Government Publishing Office

The amendment also suggests (by removing "then") that a party may designate its 30(b)(6) witness as part of the parties' discussions before the notice goes out.

No revised PDF of the rules is available yet, but Cornell's very-frequently-relied-upon page has already been updated.

No Change to Objection Procedures

One issue that commonly arises here in Delaware is that the parties serve an FRCP 30(b)(6) notice but do not receive objections until immediately before the deposition, leaving no time to resolve the issues.

Why is that? Because there is no deadline in the FRCP or the D. Del. local rules for objections to a …

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Judge Andrews Strikes Two-Reference Anticipation Opinion

Andrew E. Russell, Jan. 22, 2021
Anticipation Litigation

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 …

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On the Perils of Not Agreeing to a Reasonable Case Management Request

Andrew E. Russell, Jan. 7, 2021
Expert Discovery Litigation

Caution Tape
Hiroshi Kimura, Unsplash

I came across this case today, and I thought it was a good example of why, in Delaware, it can be dangerous to be seen as acting unreasonably, particularly when it comes to things like discovery disputes and case management.

Plaintiffs filed a first case in 2018, asserting infringement of a single patent. Earlier this year, it filed a second case against the same defendant for a newly-issued patent relating to the same subject matter.

Plaintiffs sought to consolidate the two cases because they involved similar facts:

[The cases involve] identical parties, identical accused acts of infringement, the same accused process, and related patents with identical inventors, materially identical specifications, and overlapping claim terms.

Defendants opposed …

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