A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: Magistrate Judges

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Aditya Chinchure, Unsplash

As we've mentioned a time or three in the last few months, in the wake of Judge Stark's confirmation to the Federal Circuit, parties in his former cases were given the option to either consent to a magistrate judge of their choosing or await assignment to a sitting Article III judge - most likely a helpful visitor from another district.

On this slow news day, I thought it might be helpful to look back at the results of this novel procedure over the past few months and see how many litigants have chosen to consent, and to whom. I for one was a bit surprised at the results, to wit:

  • Not consenting: 48
  • Consenting: 12

Our resident math majors will note that exactly 20% (my personal guess was closer to 50%) of cases consented to having one of our magistrate judges conduct all proceedings. Interestingly, in every case the parties chose to select their magistrate, rather than allowing the Court to choose resuling in the following distribution:

  • Judge Burke - 7
  • Judge Hall - 3
  • Judge Thynge - 2

These numbers are quite preliminary as the majority of the VAC cases have yet to make their decision on a magistrate, but it will be interesting to see how these numbers change and what effect, if any, it will have on case management in the district.

Sunset in Lewes, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Andrew E. Russell, CC BY 2.0

The District of Delaware announced today that Chief Magistrate Judge Thynge is set to retire in March 31, 2023:

The United States District Court for the District of Delaware announces that Chief Magistrate Judge Mary Pat Thynge has informed the Court of her intention to retire, effective March 31, 2023, ending more than 30 years of exemplary judicial service.
Judge Thynge is the longest serving U.S. Magistrate Judge in the history of the District of Delaware. She began her tenure as a Magistrate Judge of the Court in June of 1992, after 16 years in private practice.
Judge Thynge will be sorely …

Last month we wrote about Chief Judge Connolly's comments on the "sad reality" of referrals of SJ motions to a magistrate judge in patent cases:

[T]he sad reality in patent cases filed in this district is that a referral of a summary judgment motion [for an R&R] pursuant to § 636(b)(l)(B) inevitably results in objections to the magistrate judge's report and recommendation, which the district court judge must review de novo. Such a referral therefore ends up doubling the amount of judicial resources needed to resolve the summary judgment motion in question. For that reason, I no longer make § 636(b)(l)(B) referrals of summary judgment motions in patent cases to a magistrate judge.

He noted at the time …

Yesterday, Chief Judge Connolly issued nearly identical oral orders across five cases, instituting a new procedure for referral of the case to a magistrate judge:

ORAL ORDER: On or before December 22, 2021, the parties shall either (1) submit to the Clerk of Court an executed Form AO 85 Notice, Consent, and Reference of a Civil Action to a Magistrate Judge, indicating their consent to have a United States Magistrate Judge conduct all proceedings in this case including trial, the entry of final judgment, and post-trial proceedings; or (2) a joint letter indicating that both parties do not consent to a reference of this action to a Magistrate Judge. The letter should not indicate which party or parties did not …

Hassan Pasha, Unsplash

In light of how busy the District of Delaware is right now, between COVID-19-related trial delays and just the ongoing burden of complex of patent filings (not to mention the likely impending departure of Judge Stark), I was curious just how often parties consent to jurisdiction over an action by a magistrate judge.

After all, we've all seen the "notice, consent and referral forms re: U.S. Magistrate Judge jurisdiction" that are filed in new cases. Surely parties sometimes take the Court up on this, right?

The answer appears to be: yes, but not all that often. At least according to Docket Navigator, there have been only 12 cases in the District of Delaware since 2012 where …

This week, Chief Judge Connolly denied a joint request for leave to present an early SJ motion on damages in a patent action. The parties hoped that resolution of the motion would set the stage for settlement.

Judge Connolly reiterated his rule that he will not permit early SJ motions unless they are going to be the only SJ motions, while also commenting on his case load:

As a general rule, I do not allow for an early summary judgment motion unless the resolution of the motion would be case dispositive and the party seeking to file the motion agrees that it cannot file any other summary judgment motions. In light of my case load, which approaches 600 civil cases …

A few days ago, Magistrate Judge Fallon denied a request to stay her discovery ruling pending the losing party's objections and review by the District Judge. Defendant SXM in Fraunhofer-Gesellschaft Zur Forderung der angewandten Forschung e.V. v. Sirius XM Radio Inc., C.A. No. 17-184-JFB-SRF asked Judge Fallon to follow the parties' "agreed-upon practice" to stay discovery rulings pending objections, a practice the parties had apparently followed in two prior instances.

Or not.
Or not. Erik McLean, Unsplash

On October 7, Judge Fallon ordered that the plaintiff's experts should have access to defendant SXM's confidential information. About a week later, the parties submitted a letter setting forth their respective positions on whether the discovery ruling should be stayed.

Judge Fallon declined to stay her ruling. She noted that...

We have another entry in the ongoing saga of the adequacy of post-complaint knowledge for indirect and willful infringement.

Judge Andrews started his analysis by acknowledging his own conflicting decisions, noting that "I have certainly done my share to contribute to the disagreement, having been on both sides of the issue."

He ultimately concluded that:

  1. "[T]he plaintiff should be allowed to amend a complaint to allege knowledge since the filing of the original complaint."
  2. "In the usual case, if the plaintiff's original complaint were dismissed for failure to plead pre-suit knowledge [for indirect infringement], then the plaintiff's amended complaint would require only one additional paragraph in order to allege knowledge since the filing of the original complaint."
  3. "I will, …

This remote definitely can't decode compressed video streams by itself.
This remote definitely can't decode compressed video streams by itself. Glenn Carstens-Peters, Unsplash

Prosecution disclaimer can be tough to prove. Practiced prosecution counsel seem to know how to phrase things in such a way that a patent examiner understands them to be different from the claimed invention, but a later court may still find the opposite.

In an opinion today, Judge Andrews reversed a prosecution disclaimer finding by Magistrate Judge Fallon. The patent claims involves a "tethered digital butler" that can perform smartphone-like functions in a lower-cost way by using cheaper hardware that may be "tethered" to a desktop computer, which takes care of the heavy lifting.

Specifically, the claims discuss a "palm held remote," and the parties disputed …

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 …