A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Summary Judgment

Judge Burke Declines to Find Non-Infringement in Daubert Context; Gives Thoughts on Proliferation of Summary Judgment Motions

Andrew E. Russell, March 15, 2022
Summary Judgment Non-Infringement

These dandelions are popping up like SJ motions!
These dandelions are popping up like SJ motions! Jonne Huotari, Unsplash

Today, in Personal Audio v. Google, C.A. No. 17-1751-CFC-CJB (D. Del.), Judge Burke addressed an apparent request for the Court to find non-infringement based on a claim construction issue, which came up for the first time in the context of a Daubert motion to exclude expert testimony.

The Court expressed some initial sympathy for the non-infringement argument, suggesting it may have had some merit:

[T]he Court notes more generally that the issue underlying Defendant’s Motion is Defendant’s assertion that the claim construction for “sequencing file,” . . . requires that “you can’t use a copy of the sequencing file to control playback and respon[d] to …
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New Judge Noreika Procedure Pays Off: After Extra Pre-Trial Claim Constructions, Court Vacates Trial Date and Requests Proposed Form of Judgment

Andrew E. Russell, March 7, 2022
Summary Judgment FRCP 56

Speed
Arthur Poulin, Unsplash

In January, we noticed an interesting new procedure from Judge Norieka where, rather than address the pending motions on eleven grounds in detail, she ordered the parties to file a joint letter ranking their summary judgment motions and identifying any disputes over claim scope.

When the parties identified some "dispositive" claim construction disputes in the letter, the Court ordered briefing on those disputes.

Now, the Court has held its Markman hearing (less than a month after close of briefing), and issued an oral ruling on the new constructions at the hearing. It found for the defendants on all disputes.

The parties then filed a letter, where the plaintiff admitted that, if the Court sticks with …

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What Are Technology Tutorials in Patent Cases, and Are They Worth It?

Andrew E. Russell, March 2, 2022
Technology Tutorial Summary Judgment

Looks like they went with the low-cost version
Looks like they went with the low-cost version Markus Winkler, Unsplash

In the District of Delaware, five of our eight judges use form scheduling orders that provide a deadline for the submission of a "Technology Tutorial" around the time of claim construction.

Former Judge Stark required the parties to submit a tech tutorial in patent cases with the opening claim construction brief. Judge Stark's form order, for example, provided that:

Tutorial Describing the Technology and Matters in Issue. Unless otherwise ordered by the Court, the parties shall provide the Court, no later than the date on which their opening claim construction briefs are due, a tutorial on the technology at issue. In that regard, the parties may separately …
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Court Declines to Adopt Report & Recommendation, Grants Early Summary Judgment of Non-Infringement

Andrew E. Russell, Feb. 1, 2022
SJ Summary Judgment

Clients and co-counsel often ask whether it makes sense to object to an R&R issued by a Magistrate Judge. The answer depends on many factors. For example, why was motion denied? What are the chances it will be reversed? What is the client's commitment level to the case? What is the impact of the motion on the case? Etc.

Sometimes, though, what people really want to know is "would the district judge ever decline to adopt an R&R?" The answer to that is that yes, the court will sometimes declines to adopt an R&R, but it is definitely the less common outcome.

Yesterday, Judge Andrews did just that: he declined to adopt an R&R on a motion …

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Judge Noreika Tries New Summary Judgment Procedure in Light of Trend Towards "Shotgun Theories and Voluminous Submissions"

Andrew E. Russell, Jan. 21, 2022
Summary Judgment FRCP 56

Visualization of the average D. Del. judge's <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Summary Judgment'>SJ</a> motion pile (circa 2021, pre-Judge Stark departure)
Visualization of the average D. Del. judge's SJ motion pile (circa 2021, pre-Judge Stark departure) Christa Dodoo, Unsplash

Last month Judge Noreika issued an order praising Chief Judge Connolly's ranking-based summary judgment procedure, and imposing a similar procedure—at least for one case.

Under his SJ procedures, Chief Judge Connolly addresses each party's motions in their ranked order, and if a single motion is denied, he may decline to consider all remaining motions.

Judge Noreika issued her order after the parties in the case, Dali Wireless, Inc. v. Commscope Techs. LLC, C.A. No. 19-952-MN (D. Del.), sought …

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Lack of Expert Testimony Causes Defendant to Narrowly Lose Summary Judgment of Indefiniteness

Andrew E. Russell, Jan. 10, 2022
SJ Indefiniteness

Last Thursday, Judge Burke issued an R&R on SJ in a patent action. The patent involved software for playing back audio, and the claims included means-plus-function claim elements where an action is triggered either by a single "Back" command or by two consecutive "Back" commands.

Defendant argued that the patent failed to disclose corresponding structure showing how to calculate whether the two button presses were "consecutive"—i.e., how to measure the time between clicks. Judge Burke agreed that the patent failed to disclose such a structure:

As an initial matter, the Court disagrees with Plaintiff that these limitations "do not recite any functional requirement to measure time[.]" . . . As Defendant notes, . . . in order to be able …
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Court Permits Early Summary Judgment Motion After Parties Consent to Magistrate Judge Jurisdiction

Andrew E. Russell, Dec. 26, 2021
Early SJ Summary Judgment

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 …

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Chief Judge Connolly Comments on the "Sad Reality" of Certain Magistrate Judge Referrals

Andrew E. Russell, Nov. 27, 2021
Summary Judgment Magistrate Judges

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 …
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Disputing Your Own Facts

Nathan R. Hoeschen, Nov. 11, 2021
Summary Judgment

Chapter 8 of my personal favorite writing guide, Richard Wydick's Plain English for Lawyers, counsels against the use of elegant variation. For the uninitiated, elegant variation is the practice of using different words to express the same concept in order to spice up the writing. This tends to make things more confusing, especially in technical arenas. As an avowed logophile, it's one of the book's lessons that I struggle with the most.

I bring it up today, because I can't help but wonder if elegant variation played a role in the denial of a motion for summary judgment in Sprint Communications Company L.P. v. Charter Communications, Inc., C.A. No. 18-2033-RGA-MPT. Charter had moved for summary judgment of non-infringement, citing …

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Don't Forget That the Reverse Doctrine of Equivalents Exists...

Andrew E. Russell, Oct. 18, 2021
DOE Prosecution History Estoppel

Coffee Equals
Charles "Duck" Unitas, Unsplash

Most patent litigators know that the reverse doctrine of equivalents exists, and provides a way to argue non-infringement even if an accused product meets the literal terms of a claim. But it tends to be one of those issues that floats around in the ether, waiting for the right case, and it is rarely applied in practice.

Judge Connolly had an occasion last week to address the issue, resolving a motion for summary judgment of no reverse DOE, and took the opportunity to dig into some of the history of the reverse doctrine of equivalents. He first quoted the Federal Circuit's description of what the doctrine is:

the reverse doctrine of equivalents . . …
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