I was always disappointed when I became a lawyer that my day-to-day work did not involve more loopholes. You watch any TV show -- Law & Order (original or extra crispy (that's SVU)), The Good Wife, Matlock, all you hear is loophole this and loophole that. But every day I come into the office and its just the regular old law. It just seemed less clever than a loophole.
I was thus borderline ecstatic to see Judge Burke deciding a discovery dispute over what seems to be a genuine loophole in a protective order.
The prosecution bar in FedEx Corporate Services, Inc. v. Roambee Corp., C.A. No. 21-175-CFC-CJB (D. Del. Feb. 13, 2023) had three distinct parts.
The first was a basic prosecution bar:
[P]ersons . . . who have received access to Designated Material, shall not be engaged . . . in prosecution of patent applications on behalf of the Receiving Party . . . claiming tracking devices used in systems that monitor shipments, without prior approval to do so from the Producing Party.
The second allowed persons otherwise covered by the bar to advise on subjects other than the drafting crafting or amending of claims before the ...