A Blog About Intellectual Property Litigation and the District of Delaware


CFC
The Honorable Colm F. Connolly

Hello Crabby My Old Friend

Nathan R. Hoeschen, April 11, 2024
Mavexar

While we were on break, Judge Connolly issued an opinion in one of the lesser-covered, but most interesting, of the Mavexar suits.

Sandra Iglesias, Unsplash

Power Integrations, Inc. v. Waverly Licensing LLC, C.A. No. 22-1554-CFC (D. Del), is one of my favorite complaints ever. Waverly -- allegedly one of the Mavexar companies -- sued Power Integrations for infringement in Texas right before Judge Connolly held his first hearing in the Mavexar matters in November of 2022.

In a truly inspired move, Power integrations then filed a DJ complaint in Delaware (its state of incorporation) alleging that "Defendants have engaged in a broad and aggressive campaign to harass and threaten many companies, including Power Integrations, with assertions of patent infringement liability . . . ." Id. at D.I. 1. Notably, they managed to get this complaint on file by the end of November 2022.

The complaint is well worth a read, but the best bit is definitely when they point out that Waverly's official address is actually an empty shelf in a Staples:

In an assignment filed with the U.S. Patent and Trademark Office for the ’246 patent, defendant Array IP LLC identified itself as having the same address that defendant Waverly Licensing LLC lists in the Waverly-PI complaint as its principal place of business (3333 Preston Road, Suite 300, Frisco, Texas 75034). (Id.) However, that address is actually a Staples store . . . Moreover, the specific box number that defendant Waverly occasionally lists in its court filings as its “principal place of business” within that “suite” is an open shelf.

Id. at paragraphs 12-13.

There are pictures and everything, it's really great.

This complaint prompted all of the DJ defendants -- which included Waverly, Mavexar itself, and several others -- to ...

View

Door Slams on Sham Litigation Exception, Resulting in No Antitrust Liability for Prior IP Lawsuit

Emily DiBenedetto, Feb. 8, 2024
Trademark Litigation Antitrust

Monopoly
AI-Generated, displayed with permission

Why did physicists refuse to write about the Antitrust Paradox? Because every time they tried to define the relevant market share, the observer effect kicked in, and the monopoly disappeared. (I hope readers who have dual Bork/quark interests enjoyed that.)

Today’s highlighted opinion proceeds from trademark law, crosses into antitrust law, and has implications for patent law. In it, Judge Connolly rejects a plaintiff's attempt to argue that the defendants' prior filing of trademark litigation against competitor gave rise to anti-trust and unfair competition claims.

Noerr-Pennington Precludes Some Tort and Anti-Trust Claims Based on Litigation—Unless It Was Sham Litigation

Judge Connolly explained that the Noerr-Pennington doctrine provides immunity from certain types of claims that a plaintiff …

View

"Courts Do Not Declare Patents to be Eligible Under § 101"

Andrew E. Russell, Jan. 3, 2024
§ 101 Eligibility

"Not invalid" may be a double negative, but it's definitely not the same as "valid." Markus Spiske, Unsplash

Chief Judge Connolly issued a short opinion this morning denying a motion for summary judgment that a patent was not patent ineligible, in C.R. Bard, Inc. v. Angiodynamics, Inc., C.A. No. 20-1544-CFC-SRF (D. Del. Jan. 3, 2024).

In short, the patentee had previously succeeded on the issue of § 101 ineligibility at the Federal Circuit, which reversed a lower-court finding of ineligibility and held that:

[T]he asserted claims in Bard’s three patents are directed to eligible subject matter under § 101.

C.R. Bard, Inc. v. Med. Components, Inc., C.A. Nos. 2022-1136, 2022-1186, 2023 U.S. App. LEXIS …

View

Chief Judge Connolly Denies Daubert Motion Regarding Five Experts, Holding That Party Should Have Filed Five Separate Motions

Andrew E. Russell, Dec. 13, 2023
ETSI Congestion

Five Candles
Steve Johnson, Unsplash

Chief Judge Connolly's scheduling order requires parties to rank their Daubert motions, and gives the Court the discretion to automatically deny all lower-ranked motions if it denies any one motion. In other words, if a party files five Daubert motions, and the Court grants the first-ranked motion but denies the second, the Court can then deny motions three, four, and five:

If the Court decides to deny a motion filed by the party, barring exceptional reasons determined sua sponte by the Court, the Court will not review any further Daubert motions filed by the party.

It has a similar provision for summary judgment motions Thus, it's important that parties split up their motions and rank them. …

View

A Quick Note on How to Request Permission to Bring Electronics into the Courthouse in D. Del.

Andrew E. Russell, Dec. 8, 2023
Personal Electronics

Maybe leave the headphones at the office.
Maybe leave the headphones at the office. Christopher Gower, Unsplash

Earlier this year, the District of Delaware implemented a new policy of requiring bar cards, or an order from the Court, to bring electronics into the courthouse.

Courthouse staff have accepted out-of-state bar cards just fine. But one recurring issue is that some states simply do not issue bar cards, or only issue them optionally. Not all out-of-state attorneys have them.

As a result, in the lead up to hearings, parties often file stipulations or unopposed motions for leave for various people to bring electronics into the courthouse. The Court usually—but not always—grants these.

This post is just a reminder that, in such stipulations and motions, it's best …

View

The Other Meaning of an Ellipsis

Emily DiBenedetto, Nov. 28, 2023
Legal Writing

Dot-dot-dot
AI-Generated, displayed with permission

We all know what ellipses (". . .") mean, right? It means that something in a quote was omitted. According to Bluebook Rule 5.3:

“Omissions of a word or words is generally indicated by the insertion of an ellipsis, three periods separated by spaces and set off by a space before the first and after the last period (“♦.♦.♦.♦”), to take the place of the word or words omitted. Note that “♦” indicates a space.”

In yesterday's lengthy Mavexar opinion, however, Chief Judge Connolly pointed out that ellipses in a transcript can mean something else entirely. They are to be used to

reflect the fact [that the witness] trailed off and was silent for a …
View

In Monster 102-Page Opinion, Court Refers Rule-Breaking Mavexar and IP Edge Entities to DOJ, Counsel to ODC

Andrew E. Russell, Nov. 27, 2023
Mavexar IP Edge

Here you can see Mavexar, IP Edge, and their counsel after yesterday's opinion.
Here you can see Mavexar, IP Edge, and their counsel after yesterday's opinion. Mae Mu, Unsplash

Wow! Today, in the Mavexar cases, Chief Judge Connolly issued a huge, 102-page opinion referring plaintiffs' counsel to the Texas Supreme Court's Unauthorized Practice of Law Committee, the PTO, and the Department of Justice to determine whether counsel violated various rules—or federal laws:

As it appears that [three Mavexar employees] engaged in the unauthorized practice of law, I will refer them to the Texas Supreme Court's Unauthorized Practice of Law Committee.
* * *
I believe it appropriate to bring these matters to the attention of the PTO and the Department of Justice to allow them to conduct further inquiry into whether the PTO's rules or [18 U.S.C.] § 1001 were violated. The Department may also deem it appropriate to investigate whether the strategy employed by IP Edge to hide from the defendants in these cases and the Court real parties in interest, including France Brevets, violated any federal laws.

Nimitz Technologies LLC, v. CNET Media, Inc., C.A. No. 21-1247-CFC, D.I. 34 at 98, 100 (D. Del. Nov. 27, 2023).

If you're not familiar with them, Mavexar appears to be an entity that recruits people to serve as the sole members of shell LLCs that assert patents. The recruited individuals may not fully understand what is going on, and may get something like 5-10% of the proceeds of the patent infringement suits in exchange for accepting all of the risk. It looks like Mavexar sets up the entities, hires the attorneys, and does the work of selecting targets and even drafting claim charts.

The opinion goes through exactly what these entities and attorneys did—at least, as far as the Court can tell from the factual record and their production, which was apparently full of holes.

In short, the attorneys acted as if they were attorneys for Mavexar and IP edge rather than their nominal clients (the LLCs asserting the patents). They generally didn't communicate with their clients until Chief Judge Connolly started pressing them, which was months after they had been asserting and settling these cases.

Instead, the Court describes how they worked almost exclusively with Mavexar / IP Edge employees. Given that Mavexar ...

View

What Not to Do When the Court Requires a Concise Statement of Facts

Andrew E. Russell, Nov. 20, 2023
Concise Statement of Facts Summary Judgment

"Here is our argument. The rest of the pieces are in our concise statement of facts." T.J. Breshears, Unsplash

Years ago, I wrote a really terrible first draft of a summary judgment brief arguing invalidity of a patent for obviousness.

I wrote it immediately after expert reports, and my draft failed to actually say why the claims were obvious. Instead, the whole draft read like a sur-rebuttal to the patentee's expert: here is why their first argument doesn't work, here is why their second argument doesn't work, and so on. Never "here is why the claims are obvious."

To me, at the time, it looked great. I rebutted all of their arguments! How can we lose! To others, it …

View

How Little Is Too Little? Court Dismisses Patent Complaint for Lack of Detail, Threatens Sanctions

Andrew E. Russell, Sept. 20, 2023
MTD FRCP 12(b)(6)

Little
Paul Kramer, Unsplash

One of the early questions in many cases (particularly NPE cases) is whether the defendant can move to dismiss the complaint under 12(b)(6) for lacking sufficient detail under Twombly/Iqbal.

The answer is yes: You can, as long as there is insufficient detail. But what is the cutoff? How bad does it have to be?

We got an example of that on Monday, when Chief Judge Connolly dismissed a complaint for lacking detail. According to the Court, all the plaintiff did was say that the defendant's product infringes the claim:

"[A] plaintiff cannot assert a plausible claim for infringement under the Iqbal/Twombly standard by reciting the claim elements and merely concluding that the accused …
View

Court Grants JMOL and Reverses $19m Verdict Against Google—Did Google's Motion in Limine Save It?

Andrew E. Russell, Sept. 6, 2023
MILs Motion in Limine

Audio Player
Firmbee.com, Unsplash

Motions in limine can feel like some of the most impactful-feeling motions in the case. Unlike most motions in our busy federal courts, they are typically addressed very quickly, and almost always by the judge handling trial. They are also normally addressed immediately prior to trial. As such, even if the MIL is denied, the issues presented in the MIL may remain at the top of the judge's mind and can influence the direction of the trial (and make subsequent objections easier).

We got an example of that yesterday in Personal Audio, LLC, v. Google LLC, C.A. No. 17-1751-CFC (D. Del. Sept. 5, 2023). In that case, Chief Judge Connolly granted a post-trial JMOL …

View
Older

Archive