A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Stay

Needs Must When Markman Drives

Nathan R. Hoeschen, April 18, 2023
Extension Stay

As a peak behind the curtain, I don't normally tell muggles (non-patent folk) that I write a blog. I can't help but put myself in their shoes and imagine myself at a party talking to a man in a polo shirt who writes a blog about . . . cured meats? I see myself pressed firmly against a wall while my eyes dart madly for help that I know will not come. On his shirt - pastrami.

You see, it's in the temperature of the cure—too long, and you've lost yourself a brisket
You see, it's in the temperature of the cure—too long, and you've lost yourself a brisket AI-Generated, displayed with permission

I don't want to be that man.

But today my wife told me that she's started reading the blog. Her favorite is the one with the crab. I am ever so pleased and am inspired to maintain the commitment to the craft of blogging which has made IP/DE the bulwark of modern culture it is.

[Insert seamless transition to legal analysis here, then remember to delete this before posting]

This brings us to a novel argument to (essentially) stay 101 briefing, which Judge Williams soundly rejected yesterday. The defendant in SurgeTech, LLC v. Uber Techs. Inc., C.A. No. 22-882-GBW (D. Del. Apr. 17, 2023) (Oral Order), moved for judgment on the pleadings on 101 grounds a bit later than usual -- just after the submission of the joint claim construction chart.

The plaintiff then moved for a 5 week extension of its deadline to respond, ...

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Customer Suit Exception Argument Fails Where Patentee Asserts Additional Patent Against Customer—Even If the Issues May Be Similar

Andrew E. Russell, Feb. 20, 2023
Motion to Stay Customer Suit Exception

Factory
Ant Rozetsky, Unsplash

It's fairly common for a patentee to bring suit simultaneously against both a customer who is using or reselling an infringing product and the manufacturer who produced the product.

Sometimes the customer is the real target, and sometimes it's the manufacturer. Either way, some courts have recognized a "customer suit exception" that suggests that, under some circumstances, suits against a manufacturer should take precedence over a suit against a customer.

As courts sometimes point out, the customer suit "exception" began as an exception to the first filed rule in patent cases. But courts can also apply the principle more broadly, including to motions to stay.

For example, last week Judge Williams addressed a motion to stay …

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Some Data on Argument Requests

Nathan R. Hoeschen, Oct. 11, 2022
Argument Request Stay

Believe it or not, of 6 attempts this was the least horrific AI result
AI-Generated, displayed with permission, displayed with permission

A while back we did a post speculating that requesting argument on a motion moderately increased the chances of the Court actually holding argument on an issue.

We also speculated about several other effects of requesting argument, but I'll save those for another slow news day. I apologize for nothing.

Stone Cold Facts

To test out this theory, I picked a motion that I pegged at about a 50/50 chance of having an argument -- a motion to stay. Taking all of the decisions deciding such motions since the first of the year (and removing some in odd procedural circumstances as well as filtering out identical motions in related cases to clean up …

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The Voyage Home

Nathan R. Hoeschen, Sept. 22, 2022
Stay

I really hope this case lasts long enough for us to go through all the titles. I think We have a good shot at
I really hope this case lasts long enough for us to go through all the titles. I think We have a good shot at "Nemesis," but probably won't make it to "the Search for Spock" NASA, Unsplash

More than a year ago, we chronicled the rare tale of a stay that lasted all the way through an appeal to the Supreme Court. Thinking a stay could not possibly last any longer that that, we titled that post "The Final Frontier for Stays."

It turns out that we were right!

But only barely!

The Original Series

When last we saw our embattled litigants in Hologic, Inc. et al. v. Minerva Surgical, Inc., C.A. No. 20-295-SRF, the Federal …

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Chief Judge Connolly Stays Another Action Pending Threshold Discovery on Litigation Funding, After Well-Written Objection by Defendant

Andrew E. Russell, Aug. 18, 2022
FRCP 7.1 Litigation Funding

IP Edge? Is that you?
IP Edge? Is that you? Ahmed Zayan, Unsplash

We've talked a lot about Judge Connolly's April 2022 standing orders on disclosure statements and litigation funding, including earlier this month when we Judge Connolly stayed an action after a plaintiff failed to fully comply with those orders.

(Plaintiff in that action, by the way, filed an updated disclosure statement claiming it has no knowledge to disclose—we'll have to see how the Court responds to that).

Yesterday, it happened again, but it was triggered by a clever filing by a defendant. In Longbeam Technologies LLC v. Amazon.com, Inc., C.A. No. 21-1559-CFC (D. Del.), the Court put an order on the docket for the parties to comply with its standing orders:

ORAL ORDER: The parties are directed to certify within five days that they have complied with Chief Judge Connolly's April 18, 2022 Standing Order Regarding Disclosure Statements Required by Federal Rule of Civil Procedure 7.1. The parties are also reminded of their obligation to comply with Chief Judge Connolly's April 18, 2022 Standing Order Regarding Third-Party Funding Arrangements. Ordered by Judge Colm F. Connolly on 5/13/2022. (nmf) (Entered: 05/13/2022)

In response, plaintiff filed an updated Rule 7.1 statement but, as far as I can tell, no litigation funding

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Can Defendants Move to Stay Vacant Judgship Cases After All?

Andrew E. Russell, Aug. 5, 2022
Congestion Vacant Judgeship

Defendants lining up to file their motions to stay
Defendants lining up to file their motions to stay Rob Curran, Unsplash

When the Court instituted its vacant judgeship procedures following Judge Stark's elevation to the Federal Circuit, the implementing order included procedures to keep cases moving if the parties do not consent to a magistrate judge to hear the case.

For example, the order directs parties to hold a Rule 26(f) conference within seven days of notifying the Court that the parties would not consent to a magistrate judge:

The parties shall cooperate in good faith to move the case forward. To that end, within seven days of filing the notice that the parties would not consent to a Magistrate Judge, the parties shall hold a Rule 26(f) …
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Judge Connolly's April 2022 Standing Orders Apply to Existing Cases, Should Not Be Taken Lightly

Andrew E. Russell, Aug. 1, 2022
Standing Orders FRCP 7.1

Hatchet on Log
Andrew E. Russell, CC BY 2.0

We posted earlier this year about Judge Connolly's new standing orders requiring plaintiffs to disclose litigation funding and Rule 7.1 disclosure requirements for certain entities such as LLCs.

In that post, we pointed out that "the language seems to apply to existing cases, but there is no explicit deadline for compliance. Personally, though, I'd probably get moving..."

Apparently, counsel for the parties in VLSI Technology LLC v. Intel Corporation, C.A. No. 18-966 (D. Del.) do not read the blog.

About two weeks ago, the Court issued oral orders in VLSI directing the parties to comply with his standing orders:

ORAL ORDER: It is HEREBY ORDERED that each party shall …
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Judge Fallon Stays Action Involving IPR on Just One of Two Asserted Patents

Andrew E. Russell, June 10, 2022
Stay Pending IPR IPR

There go the patentee's chances to oppose a stay....
Saad Chaudhry, Unsplash

In an oral order today, Judge Fallon stayed an action where there was an IPR on just one of two asserted patents:

ORAL ORDER: Having reviewed Defendant's letter motion to stay the case pending issuance of the PTAB's final written decision in the IPR proceedings . . . IT IS HEREBY ORDERED that: (1) Defendant's motion to stay is GRANTED because Defendant has satisfied the three stay factors. See IOENGINE, LLC v. PayPal Holdings, Inc., C.A. No. 18-452-WCB et al., 2019 WL 3943058, at *2 (D. Del. Aug. 21, 2019). First, the stay will simplify the issues for trial because the PTAB's final written decision is likely to resolve prior art-based invalidity …
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Stay Motion Denial Results in Guidance for the Parties—and for the PTAB

Andrew E. Russell, March 9, 2022
Motion to Stay IPR

Stay!
Stay! Taylor Kopel, Unsplash

Pre-institution stays can be tough to achieve, but they are sometimes granted. Even when denied, though, a pre-institution stay may have other benefits, including that the Court may be willing to offer guidance on what to do—and what may happen—if the IPR is instituted.

An order from Magistrate Judge Burke on Friday is a good example. In eBuddy Technologies B.V. v. LinkedIn Corporation, C.A. No. 20-1501-RGA-CJB (D. Del.), the defendant moved for a pre-institution stay pending IPR. Judge Buke denied it:

ORAL ORDER: The Court, having reviewed Defendant's motion to stay the case pending resolution of [un-instituted] inter partes review ("IPR") proceedings . . . , hereby ORDERS that the Motion is DENIED without prejudice to renew in light of the following: (1) For reasons it has previously expressed, the Court is not typically inclined to grant a stay in favor of IPR proceedings when a case has been moving forward for a while and when the PTAB has not yet determined whether to initiate review of any of the patents-in-suit. . . . .; (2) That outcome seems particularly ...
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Likelihood of Stay Pending IPR in W.D. Texas vs. Delaware

Emily DiBenedetto, Feb. 23, 2022
IPR Stay

Today, we analyze the District of Delaware's propensity to grant stays pending IPR decisions, as compared to the Western District of Texas. Here are the big takeaways:

  • Prior to IPR institution, motions to stay are almost always denied in D. Del.;
  • Judge Albright of W.D. Tex. has denied 40% of motions (i.e. two motions) to stay pending instituted IPRs, but there is not much data available yet;
  • D. Del. has denied about 28% of motions (i.e. 16 out of 58) to stay pending instituted IPRs in the last four years;
  • D. Del. receives far more motions to stay pending IPR than W.D. Tex., and grants them just over half the time (~60% in the last 4 years, …
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