Today's tale is of a stipulation, born of hope and an honest desire to streamline a case, that ended in acrimony and pain.
The parties in Roger P. Jackson, M.D. v. NuVasive, Inc., C.A. No. 21-53-RGA, D.I. 431 (D. Del. Feb 21, 2025), had long ago stipulated to several representative products for the purposes of infringement and invalidity across an otherwise vast swath of accused …
I am from Minnesota. Home of the noble loon, and dainty ladyslipper. It is a harsh place. I have read in books of lands where a person's word is all they have -- a sacred thing that must be protected at all costs. To barter it away is to invite the most dire peril.
I wasn't really using it much anyway...AI-Generated, displayed with permission
Minnesota is not such a place. The winds are fickle there, and everyone understands that most commitments are contingent upon a (sometimes unlikely) confluence of fortuitous occurrences. If you way, I'll visit Gramma this weekend, there's an implied "if it's not too cold." If you say "I'll bring the cheeseburger soup" it's understood that you …
We lawyers move things around all the time. Some due date or another falls on a vacation, an expert gets sick, a bunch of files won't load -- a thousand different minor catastrophes can occur. In Delaware, the result is almost invariably a stipulation to move the relevant dates.
WHEREAS, on the first day the waters turned to blood;AI-Generated, displayed with permission
Typically for little interim deadlines, the Court will grant the stipulation as a matter of course. Deadlines a little closer to trial are a bit trickier. Judge Connolly, for instance, notes in his form scheduling order that "Should the parties later stipulate or otherwise request to have the [SJ and Daubert] reply brief deadline extended, the parties …
Judge Burke's decision in CosmoKey Solutions GmbH & Co. KG v. Duo Security, Inc., C.A. No. 18-1477-JLH-CJB (D. Del. Nov. 15, 2024) (Oral Order), deals with a stipulation that encompassed more than intended.
The case began life under the watchful gaze of Chief Judge Connolly. Like all patent cases assigned to him at the time, the scheduling order …
As we've noted in the past, it's fairly routine to stay cases once an IPR is instituted. But the Court has at least once denied a stipulated stay where the IPRs were not yet instituted.
Last week the visiting Judge Choe-Groves denied a stipulated stay where the PTAB had instituted an IPR for two out of three patents-in-suit—leaving one patent not subject to an IPR, as the parties explained in the stip:
WHEREAS, Teladoc filed three petitions for inter partes review (“IPR”) (Nos. IPR2024-00618, IPR2024-00616; and IPR2024-00617) of the Asserted Patents;
WHEREAS, the Patent Trial and Appeal Board (“PTAB”) instituted IPRs on the ’554 and ’142 Patents on September 16, 2024 and September 17, 2024; …
Deadline extensions are perhaps the most common of all requests to the Court. I have seen requests granted for medical reasons, conflicts with deadlines in other cases, prescheduled vacations, and the need to enact a dark ritual which can only take place when the moon fears to rise (we'll have a post about that one on the future, assuming the ritual is unsuccessful and does not result in all things returning to dust beneath the sacred ash and the profane oak).
Today's post, however, is a tale of an extension denied. The defendant in Purdue Pharma LP v. Accord Healthcare Inc., C.A. No. 22-913-WCB, D.I. 111 (D. Del. Oct. 2, 2024) had prevailed on its obviousness defense following a bench trial and filed a timely motion for fees 14 days after the Court entered final judgment.
The plaintiff, however, apparently intended to appeal the invalidity determination and thus requested that the defendant stipulated to defer briefing on fees until after the resolution of that appeal. When the defendant refused to stipulation, plaintiff moved to defer briefing until after the appeal and requesting expedited consideration of the motion (as the clock was already ticking on its 2-weeks to file a responsive fees brief).
Unlike in the true to life examples listed at the start of the blog, the plaintiffs motion was not based in any particular conflict with client or counsel. Instead, the deferment was based on the general proposition that "the appeal may impact or otherwise refute the bases for Accord’s motion." Id., D.I. 108 at 2. The defendant filed a short opposition to the motion, noting that this logic would apply to essentially any motion for fees.
Judge Bryson denied the motion to defer the briefing in a short order:
The motion to defer briefing on Accord's motion for attorneys fees 108 is denied. The court will determine when to rule on Accord's motion for attorneys fees after the briefing is complete.
We'll keep a watch out for that fees opinion and let you know if it comes before or after the appeal.
It seems fairly well known that while parties can freely stipulate to most kinds of schedule adjustments in the District of Delaware, changing the dispositive motion deadline is a danger zone that might result in the denial of your stipulation—or worse, such as the loss of your trial date.
But people often do it anyway. Yesterday, visiting Judge Bryson denied a stipulation that would move the case dispositive motions deadline to April 25, 2025 for a trial starting July 14, 2025.
Assuming the parties use the briefing schedule under the local rules, the Court will not have a full set of papers until May 16, less than 2 months before the first day of trial. No …
It can be risky to stipulate to change the deadline for dispositive motions, particularly for the reply brief, because it cuts short the Court's time to resolve those motions.
We've talked about this before, including in our guide to stipulations. But I think it's worth noting again, given that it popped up twice within the past week.
In both instances, the parties stipulated to move the reply dispositive motion deadline, while keeping the pretrial conference deadline—thus shortening the Court's time to resolve case dispositive and Daubert motions.
Likewise in both instances, the Court said no, but gave the parties some options.
As to the first stip, Magistrate Judge Burke actually suggested an abbreviated summary …
Parties stipulate to drop various claims and defenses all of the time. Sometimes, the parties simply bargain with each other to winnow down the scope of the case for trial. Other times, a defense or claim may be dropped to avoid some especially harsh discovery burden. Sometimes you just hate a patent claim sooo much.
Always there are dangers. For one rule is supreme in the realm of stipulations.
No takebacks.
AI-Generated, displayed with permission
Such was the lesson this week in Allergan, Inc. v. Mankind Pharma Ltd., C.A. No. 23-272-JFM, D.I. 126 (D. Del. July 24, 2024). The defendant, Mankind, had stipulated to drop all invalidity defenses as to one patent "because it would streamline the case and would allow them to avoid answering discovery requests" and because "the 504 patent had been unsuccessfully challenged in the past and the invalidity theories that remained were weak." Id. at 4.
A bit later Judge Andrews issued is opinion in Allergan USA, Inc. v. MSN Labs. Private Ltd., C.A. No. 19-1727-RGA (D. Del. Sept. 27, 2023), which we covered previously on the blog. TL;DR Judge Andrews held (for the first time in the district) that OTDP applied when the first-filed, and first-issued, patent was the one being invalidated.
All of a sudden, the defendant realized that they might have a real humdinger of a defense and so they moved to "vacate" the earlier stipulation in anticipation of the Federal Circuit affirming the decision in MSN.
Visiting Judge Murphy, however, held that this ...
In the post, we note that certain kinds of stipulations are kinda iffy, in that "the parties can file a stipulation [about the issue] but the Court may deny or modify it, or the stipulation may have unexpected consequences." One of those categories is requests to move the trial date.
We got a good example of that this week in Rotolight Limited v. Videndum PLC, C.A. No. 22-0098-JLH, D.I. 119 (D. Del. July 8, 2024). The parties tried to stipulate to move the trial date back by …
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