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 …
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 ...
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 …
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 …
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 …
In Candid Care Co., v. SmileDirectClub, LLC, C.A. No. 21-1180-CFC (D. Del.), SmileDirectClub sued Candid Care—its competitor—for patent infringement of a single patent. Chief Judge Connolly dismissed the case, holding that the patent was patent ineligible under § 101.
The next day, SmileDirectClub sued Candid Care on a second patent in the same family, this time in the Western District of Texas.
But the Western District of Texas transferred the case back to Delaware—and, because it is related to the previous case, it was assigned to Chief Judge Connolly again. Shortly thereafter (perhaps to avoid its second patent suffering a similar fate under § 101), SmileDirectClub granted …
When we last wrote about Mavexar, Chief Judge Connolly had held a civil contempt hearing after he ordered the sole member of Backertop, a Mavexar-related LLC, to appear in-person in Delaware and she failed to appear (she instead initiated a head-on challenge to the authority of the Court). She likewise failed to appear for her contempt hearing.
Today, the Court issued its opinion and order, holding the witness in contempt. It handily dispatched with each of the witness' arguments against the hearing.
It easily rejected their first argument—that the Court lacks jurisdiction after the entity, Backertop Licensing LLC, dismissed it's complaint. The Court reiterated the same ruling it made last time.
Next, the Court easily rejected the idea that civil contempt is "meant to benefit the complainant," citing multiple U.S. Supreme Court opinions to the contrary. It also rejected the idea that a party can re-litigate the underlying order in context of a contempt proceeding.
I found the Court's discussion of the alleged Fifth Amendment violation interesting, particularly when the Court attempts to identify exactly which Fifth Amendment right it could possibly have ...
Often times the hard part of a stipulation is just convincing everyone that they're not secretly giving up the farm. Lawyers are used to looking for hidden hooks in every proffered bite, and it's hard to convince us that this one is just tasty fish. We've all heard some scary store about a stipulation that gave away too much and changed the course of a case.
This is one of those stories . . .
But it turns out fine in the end.
UCB, Inc. et al v. Annora Pharma Private Ltd., C.A. No. 20-987-CFC (D. Del. Aug. 16, 2023), dealt with a patent for an anti-seizure drug compound. The defendants conceded infringement, …
We're back! Our trial was a success, Nate is back from his travels, and things have cooled down enough for us to resume regular posts this week.
While we were tied up, there was some progress in the Mavexar cases. If you recall, Chief Judge Connolly had ordered the sole member of Backertop, a Mavexar-related LLC, to appear in-person in Delaware to answer for the entities' potential fraud on the Court. She objected, stating that she would not appear.
Since then, the July 20 hearing occurred, and as promised she did not appear—although her counsel, and counsel for Backertop, did show up. The transcript for that hearing is below.
Judge Connolly issued a post-trial opinion in a false advertising case this week that contained another interesting bit of damages arcana under the Lanham Act.
The trial in CareDx, Inc. v. Natera, Inc., C.A. No. 19-662 (D. Del. July 17, 2023), seemed to go great for the plaintiff with the jury finding 9/10 of the defendant's advertisements were false and awarding $21.2 Million in compensatory damages and $23.7 Million in punitive damages. As we say in Delaware, "that's a lotta crabs"*
It all went tails up in post-trial briefing however, when the defendant moved for JMOL of no damages. The court began by summarizing the elements of a Lanham Act claim in the Third Circuit
1) that the defendant has made false or misleading statements as to his own product [or another's]; 2) that there is actual deception or at least a tendency to deceive a substantial portion of the intended audience; 3) that the deception is material in that it is likely to influence 3 purchasing decisions; 4) that the advertised goods traveled in interstate commerce; and 5) that there is a likelihood of injury to the plaintiff in terms of declining sales, loss of good will, etc.
CareDX, at 3-4 (emphasis added) (quoting Pernod Ricard USA, LLC v. Bacardi U.S.A., Inc., 653 F.3d 241,248 (3d Cir. 2011))
The highlighted factor is the interesting one. You see, actual deception is ...
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