A Blog About Intellectual Property Litigation and the District of Delaware


CA3
United States Court of Appeals for the Third Circuit

"A Physicist, a Chemist, and an Economist Find Themselves on a Desert Island with a Single Can of Food . . ."

Andrew E. Russell, Feb. 7, 2024
Apportionment Daubert

Island
AI-Generated, displayed with permission

Visiting Judge Wolson of the Eastern District of Pennsylvania issued a colorful opinion on Monday. It starts with a joke:

Economists love assumptions. One joke recites that a physicist, a chemist, and an economist find themselves on a desert island with a single can of food. The physicist offers to calculate the force needed to use a coconut to open the can. The chemist offers to make a solution that will eat through the can’s top. The economist tells them they are making it too complicated and just to assume a can opener.

Wirtgen America, Inc. v. Caterpillar, Inc., C.A. No. 17-770-JDW, at 1 (D. Del. Feb 5, 2024).

The opinion involves an …

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Read Those "So Ordered" Entries Closely! Court Rejects Stipulation After Warning Parties In PDF Copy of Previous "So Ordered" Stipulation

Andrew E. Russell, Nov. 3, 2023
Stipulation Litigation

In D. Del., stipulated extensions of the schedule are routine and are normally granted, with occasional exceptions. Usually, when the Court grants them, it results in an unremarkable order like this:

Order re Stipulated Extension

There's really nothing there. Occasionally, though, it results in an order like the below. Can you spot the difference?

Order re Stipulated Extension with Attachment

Can you see it? It's tiny. The only difference is that the docket number ("52") is a link. I don't blame you if you missed it.

Usually, clicking on that link, you'll find a plain-Jane stamped or signed version of the stip as filed. Nothing remarkable or meaningful at all. It feels wrong to bill .1 hours to a client to click on the stip and look at …

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Infringement Ex Machina

Nathan R. Hoeschen, Sept. 26, 2023
Copyright Fair Use

It's my dear hope that this post will be one of the few that appeals to muggles. Please, if you see one, thrust your phone at them proudly and demand they read it. Watch their terrified eyes scan over every word. Do not allow them to flee. Repeat. Repeat. Repeat!

We call this SEO in the biz
We call this SEO in the biz AI-Generated, displayed with permission

Judge Bibas gave us this gift of a general interest (comparatively) post with his decision yesterday in Thomson Reuters Enterprise Centre GmbH v. ROSS Intelligence Inc., C.A. No. 20-613-SB (D. Del. Sept. 25, 2023) (Mem. Op.).

The case deals with the exceptionally buzzy issue of AI data scrubbing. Thompson Reuters runs the hugely popular Westlaw legal research platform. As part of that service they provide they provide vaguely useful "headnotes" describing the holdings of the cases.

(Eds. Note - Westlaw, if you are reading this, we can be bought. Every 10% you discount our service will result in an improvement of the adjective above. We can go all the way from "vaguely", to "quite", to "masterfully." It's about time this blog started paying the bills).

Ross is attempting to start some sort of AI-driven competitor where you just type in a question and receive a plain language legal answer. No Booleans, no problem.

To accomplish this, they ...

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Judge Bibas Notes Delaware Split Regarding Unclean Hands Counterclaims in Patent Cases

Andrew E. Russell, Aug. 16, 2022
MTD Motion to Dismiss

Hand Washing
Tim Mossholder, Unsplash

In an opinion on Friday, visiting Judge Stephanos Bibas of the Third Circuit pointed out a split in District of Delaware cases regarding whether a party can bring unclean hands counterclaims in patent cases:

Nor does TexasLDPC persuade me this declaratory-judgment counterclaim fails as a matter of law. True, courts disagree whether “unclean hands” can support a declaration that a patent is unenforceable. Compare In re Gabapentin Patent Litig., 649 F. Supp. 2d 340, 348 (D.N.J. 2009) (concluding it cannot), and Kimberly-Clark Worldwide, Inc. v. Cardinal Health 200, LLC, 2012 U.S. Dist. LEXIS 104983, at *2–3 (D. Del. Jul. 27, 2012) (same),[ ]with The Meds. Co. v. Teva Parenteral Meds., Inc., 2011 WL 13141923, at *1 n.2 (D. Del. Oct. 6, 2011) (denying motion to dismiss or strike unclean hands counterclaim).

Judge Bibas sided with the cases holding that "unclean hands" is a proper counterclaim in a patent action:

Still, I will not stop Defendants from demanding a declaratory judgment about the unclean-hands doctrine. In my view, I may grant such relief. See Qualcomm Inc. v. Broadcom Corp., 548 F.3d 1004, 1025–26 (Fed. Cir. 2008) (“[A] district court ...
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Judge Bibas: "Equivalent" Doesn't Imply "Bioequivalent"

David M. Fry, Sept. 15, 2021
MTD Twombly

Drugs
freestocks, Unsplash

Sitting by designation in D. Del., Circuit Judge Bibas recently issued an interesting 12(b)(6) opinion on false-advertising claims in the pharma context. These opinions tend to fly under the radar, but they often contain helpful practice tips.

The parties "both sell a medical cream, each with the same active ingredients in the same strength." Although the defendant's cream "is not an FDA-approved generic and has not been tested for bioequivalence[,]" it was listed in a database of pharmaceutical products "as an 'Equivalent Drug[.]'"

Judge Bibas found that this statement was neither false nor misleading:

Yet Sebela insists that “equivalent” implies more: bioequivalence and FDA approval. . . . The FDA has not approved TruPharma’s cream. But …
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Judge Bibas: "Deadlines are not suggestions. Litigants must respect them."

Andrew E. Russell, July 19, 2021
Substantial Completion FRCP 26

Penny
Adam Nir, Unsplash

As we've discussed, parties sometimes treat the deadline for "substantial completion of document production" as a soft deadline, doing a "rolling production" afterwards that can be quite voluminous. An opinion from Judge Bibas today shows the risk of not taking that deadline seriously.

In the opinion, Judge Bibas excluded over 60,000 rows of spreadsheet sales data that were produced by a defendant in an Fair Labor Standards Act class action, after the defendant waited until six months after the deadline for substantial completion of document production to produce the data.

As usual for Judge Bibas, his opinion is an interesting read and a bit different from what we typically see from other judges in Delaware. …

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Can a Defendant's Own Patents Support an Allegation of Infringement of a Plaintiff's Patent? Yes, per Judge Bibas.

Andrew E. Russell, June 21, 2021
FRCP 12 MTD

I wonder how many actual schoolbooks use the
I wonder how many actual schoolbooks use the "Century Schoolbook" font? Hope House Press - Leather Diary Studio, Unsplash

As we mentioned in our last post, Judge Bibas of the Third Circuit has taken two D. Del. patent cases by designation, along with a number of other cases.

I've seen a number of his opinions in other cases come through over the course of the year. They are easy to identify, as his writing style differs from any other judge we've had, in a way that is interesting to see.

One particularly notable opinion of his issued back in March, and apparently slipped our notice at the time. In it, he denies an FRCP 12(b)(6) motion, holding that a defendant's own patents can serve as circumstantial evidence that its products practice the claims, if those patents describe an infringing configuration. ...

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Judge Bibas Stays Patent Action Less Than One Month From Trial, Pending Decision on Daubert & SJ Motions

Andrew E. Russell, June 18, 2021
Sua Sponte Trial Calendar

Hit the brakes!
Hit the brakes! Arthur Poulin, Unsplash

For the first time, Judge Stephanos Bibas of the Court of Appeals for the Third Circuit has taken at least two patent cases by designation in the District of Delaware this year (along with a number of non-patent cases):

  • TexasLDPC Inc. v. Broadcom Inc., C.A. No. 18-1966-SB (D. Del.)
  • Boston Scientific Corporation et al v. Micro-Tech Endoscopy USA Inc., C.A. No. 18-1869-SB (D. Del.)

We mentioned Boston Scientific earlier this week; it was set to go to a jury trial July 12, 2021.

On Wednesday Judge Bibas entered the following order on the docket, staying the case one day before the pretrial conference:

ORAL ORDER, The pretrial …
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New Federal Rule of Appellate Procedure 3 Regarding Contents of a Notice of Appeal

Andrew E. Russell, April 21, 2021
Litigation FRAP 3

A peel can be a trap for the unwary.
A peel can be a trap for the unwary. Jake Nackos, Unsplash

I saw on the Civil Procedure & Federal Courts Blog that the Supreme Court adopted an amended FRAP 3 last week.

The new amendment is focused on getting rid of some pitfalls in the previous procedure for filing a notice of appeal.

The old rule required a party to file a notice of appeal identifying the "judgment, order, or part thereof" that it is appealing. As explained in the comments to the amendment (embedded below), some courts interpreted that language strictly to hold that a party who named a specific order waived their right to otherwise appeal the judgment:

Whether due to misunderstanding or a misguided attempt …
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