A Blog About Intellectual Property Litigation and the District of Delaware


CA3
United States Court of Appeals for the Third Circuit

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 …

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. …

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. ...

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 …

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 …