A Blog About Intellectual Property Litigation and the District of Delaware


CAFC
United States Court of Appeals for the Federal Circuit

Federal Circuit Denies Mandamus Petitions, Says Court Can Act After Dismissal

Andrew E. Russell, Jan. 4, 2023
Mavexar Mandamus

OK Nate, you win. Mavexar is a crab now.
OK Nate, you win. Mavexar is a crab now. AI-Generated, displayed with permission

We posted last month about two more mandamus petitions regarding Chief Judge Connolly's recent efforts to enforce his standing orders regarding disclosure requirements in his cases.

The Mavexar saga is getting a bit complicated, so here is a quick recap of the mandamus petitions:

  • Chief Judge Connolly scheduled hearings in several cases regarding various plaintiffs' compliance with his standing orders
  • In two of the hearings, the plaintiffs explained that an entity called Mavexar recruited the plaintiffs and took up to 95% of their proceeds
  • The Court ordered some of the Mavexar entities to produce a broad range of communications among the plaintiffs, Mavexar, and their attorneys
  • One …
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Briefing Complete on Two More Mandamus Petitions Related to the Mavexar Hearings

Andrew E. Russell, Dec. 14, 2022
Mavexar Mandamus

A Creek View
AI-Generated, displayed with permission

We've posted a lot about the Mavexar hearings. Earlier this month, two of the plaintiffs in cases that had hearings scheduled, Creekview IP LLC and Waverly Licensing LLC, filed nearly-identical petitions for mandamus.

The petitions are linked below. In each, the petitioner seeks to reverse Chief Judge Connolly's order scheduling an evidentiary hearing to investigate compliance with the Court's standing orders:

Petitioner respectfully requests that the Court issue a writ of mandamus reversing the Memorandum Order and ending the judicial inquisition of Petitioner.

The petitions argue that the Court lacked Article III standing, because the cases had been dismissed, that Chief Judge Connolly abuse his discretion in issuing the standing order, and that Congress has …

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A B-Plot in the Mavexar Saga

Nathan R. Hoeschen, Dec. 6, 2022
Mavexar Mandamus

Hasnain Sikora, Unsplash

The Federal Circuit made its second foray into the Mavexar (I think) saga on Friday when it ruled on a new petition for Mandamus is In re: Swirlate IP LLC.

The plaintiff in Swirlate filed a petition for mandamus on November 30, seeking to stop a scheduled December 6 hearing.

I should note at the outset the while the Swirlate case seems to mimic the M.O. of a Mavexar entity—a Texas LLC with a single managing partner with no apparent connection to the patent—the Court has not yet held a hearing on the issue, so we can't say conclusively that the matter is related. It was, however, scheduled for a hearing in December that that sole …

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Six Amicus Briefs Filed in Support of Chief Judge Connolly's Litigation Funding Orders

Andrew E. Russell, Dec. 1, 2022
Mavexar Litigation Funding

Artist's depiction of amicus attorneys standing guard outside of the District of Delaware
Artist's depiction of amicus attorneys standing guard outside of the District of Delaware AI-Generated, displayed with permission

There has been so much activity in the Mavexar cases this week that it's hard to keep up. Over the last two days, various parties have requested leave to file a total of six amicus briefs in response to the Mavexar petition for a writ of mandamus in the Nimitz case, and the respondent filed their brief as well.

All of the briefs were great, and many repeat some of the same arguments. I thought it might be worthwhile to take a spin through them and mention a few notable or unique points in each.

(If you need an overview, check out our …

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No damages? No problem.

Andrew E. Russell, June 29, 2022
Damages Expert Witness

Dollar Bills
Sharon McCutcheon, Unsplash

Judge Bryson resolved a large pile of motions in limine this month in IOEngine, LLC v. Paypal Holdings, Inc., C.A. No. 18-452-WCB (D. Del. June 15, 2022). What's a large pile, you say? About nineteen motions in limine total if I'm counting correctly.

The opinion hits a number of the old stand-by MILs, including that the accused infringer cannot call the patentee names like "patent troll" (we've discussed that before), that PTAB and IPR proceedings do not come in and the parties cannot talk about inequitable conduct (common results), and that general evidence about the parties' size/net worth is precluded (also not uncommon).

There were a number of interesting motions, though, …

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"Remember That Time a Plaintiff Tried to Serve 23,668 RFAs?"

Andrew E. Russell, May 10, 2022
RFAs Discovery Dispute

"Our RFAs will blot out the sun!" Possessed Photography, Unsplash

I have a feeling that, when the question of "how many RFAs can we serve if there is no limit" comes up going forward, we are all going to remember this case.

In FG SRC LLC v. Xilinx, Inc., C.A. No. 20-601-WCB (D. Del.), plaintiff apparently served 23,688 RFAs on the defendant, each one requesting an admission that a document produced by the defendant was authentic.

You may be thinking "Was this all in one set of RFAs?? Did they type this all out?!?" and it appears that the answer is "yes." According to the Court, the plaintiff served a "3,604-page document entitled 'First Requests for Admission of Authenticity.'" That's 9.1 RFAs per page.

I have to imagine they used a computer script or something similar to draft these. I hope they didn't condemn a poor associate or paralegal to their office for a week to type these out.

In any case, the defendant—shockingly!—objected that having to respond to 23,668 individual RFAs was "abusive, unreasonable, and oppressive." Judge Bryson ...

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Wasted Effort? Court Denies Spoliation Sanctions After Prototype Goes Missing from Inventor's Home

Andrew E. Russell, May 9, 2022
Spoliation Sanctions

Fire Department
Mor Shani, Unsplash

In IOEngine v. Paypal Holdings, Inc., C.A. No. 18-452-WCB (D. Del.), the inventor kept a box of 33 prototypes for his invention in his basement "laboratory."

One of the prototypes—the "MediKey device"—had been the subject of intense dispute in a previous case on his patent. It had been analyzed by experts for both sides, who disputed its functionality and whether he had accurately described it to the PTO (as part of an inequitable conduct claim).

After a series of electrical incidents and fires in his laboratory, involving visits from various electricians and fire control personnel, the inventor discovered that the prototypes were in a new box and that the MediKey device was missing. …

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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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Fed. Cir. Grants Mandamus Petition, Orders Transfer Out of W.D. Tex.

Andrew E. Russell, Nov. 10, 2020
Jumara Transfer

Yesterday the Federal Circuit granted a mandamus petition to transfer a case against Apple out of the Western District of Texas to the Northern District of California, ordering that Judge Alan D. Albright had clearly erred in declining to transfer the case.

Patently O has a full summary of the opinion, including the strong dissent.

A couple of additional thoughts:

  • It is interesting that the Federal Circuit did not have a problem with Apple filing its mandamus petition before the District Court had even ruled on the motion to transfer. Footnote 1 does limit this practice to the "particular circumstances of the case," but obviously it worked out well for Apple here.
  • The Federal Circuit's opinion applies Fifth Circuit …
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Fed. Cir. Confirms That "Printed Matter" Can Render Claims Ineligible Under § 101

Andrew E. Russell, Nov. 10, 2020
§ 101 Printed Matter

Handwritten Form
Glenn Carstens-Peters, Unsplash

The "printed matter" doctrine states that elements claiming printed matter—e.g., text printed on paper or some other substrate—bear no patentable weight unless the printed matter and the substrate are functionally related. As the Federal Circuit explained today:

[P]rinted matter encompasses any information claimed for its communicative content, and the doctrine prohibits patenting such printed matter unless it is “functionally related” to its “substrate,” which encompasses the structural elements of the claimed invention.

In its decision, the Federal Circuit noted the Court has—incredibly—never addressed whether a claim directed to printed matter is ineligible under § 101:

Notably, since the Supreme Court articulated its two-step framework in Alice, this court has not directly addressed whether …
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