We haven't written about Mavexar for a while. But a new order today shows that the Court hasn't let up.
We discussed last year how, following a hearing in which the nature of Mavexar came out, the Court ordered the parties and attorneys in some of the Mavexar cases to submit to the Court a broad range of communications among the plaintiffs, Mavexar, and their attorneys.
Today, the Court issued a similar order in an additional case, Backertop Licensing LLC v. Canary Connect, Inc., C.A. No. 22-572-CFC (D. Del.). That case was the one at issue in the November 10 hearing, where the owner of Backertop testified that she is a paralegal who is married to …
In most patent cases that make it through trial, the losing party files a post-trial motion seeking judgment as a matter of law (JMOL), asking the judge to override the jury and find for them instead. It seems fairly uncommon to see a case that went to trial and did not settle that doesn't involve a post-trial JMOL motion from one side or the other.
Under the federal rules, to file a post-trial JMOL motion under FRCP 50(b), you must first file a JMOL motion during trial under FRCP 50(a). That motion must be made before the case is is submitted to the jury, and must "specify the …
Just last week, we wrote about Judge Noreika ordering an in-person meet-and-confer to occur between lead trial counsel regarding claim terms, in the courtroom in Delaware, and "continuing until excused by the Court." In ordering the in-person meet-and-confer, Judge Noreika noted that the parties had "spoke[n] for just 20 minutes about 10 disputed terms" during their meet-and-confer.
Yesterday, Chief Judge Connolly issued an order along similar lines—but outright canceling the Markman hearing. Like Judge Noreika did, the Court noted that the parties had failed to adequately meet-and-confer about a disputed term:
Plaintiffs first made their new proposal [to construe "tangent"] during the "meet and confer" discussion required by paragraph 13 of the Revised Scheduling Order. . . …
In WSOU Investments, LLC v. SalesForce, Inc., C.A. No. 23-27-CFC (D. Del. Feb. 23, 2023), one of the parties filed a "motion for leave to file under seal" some of its briefing, exhibits, and—notably—its Rule 7.1 statement.
The case is a small miscellaneous action seeking to compel discovery relating to a W.D. Tex. patent action.
In response to the motion for leave to file under seal, Chief Judge Connolly elected to review all sealed filings on the docket. He went so far as to follow up with the judge in the underlying W.D. Texas action:
WSOU's motion for leave to file under seal prompted me to review all the filings the parties have maintained under seal to date.
I started with the parties' briefs (D.I. 3; D.I. 16; D.I. 20); and, because the parties justified the sealing of those briefs in part because the briefs quote from a sealed discovery hearing conducted by Judge Gilliland in the Western District of Texas, I shared copies of the briefs with Judge Gilliland to get his views on the appropriateness of maintaining the briefs under seal. I determined, and Judge Gilliland agreed, that no good cause exists ...
In Charles Smith Enterprises, LLC v. Catapult Sports, Inc., C.A. No. 21-1278-CFC (D. Del.), the parties filed a 60-page joint claim construction brief that included disputes on a number of terms where one party or the other proposed "plain and ordinary meaning" or "no construction necessary" while the other side proposed a specific definition for the terms.
By my count, for every single one of the parties' 15 disputed terms, one side or the other proposed "plain and ordinary meaning" or "no construction necessary" with no alternative construction—before Chief Judge Connolly, no less. These counsel clearly don't readthisblog.
In some instances, the parties just briefed the terms in an odd way. …
In the before time, when the green grass grew tall even in the wan Wilmington sun, all scheduling orders had two rounds of contentions, one early in the case and another near the close of fact discovery. A bit over two years ago, Judge Connolly shook things up by introducing a new form order in his cases that included only a single round of contentions early in the case and requiring "good cause" to amend.
AI-Generated, displayed with permission
And so, on this slow news day, I decided to take a look back at how often parties manage to show the requisite good cause to amend their contentions in cases assigned to Judge Connolly (many of these are decided in the first instance by a magistrate judge).
The upshot is, that most of these motions seem to succeed. DocketNavigator shows 10 such motions in cases assigned to Judge Connolly (which strikes me as low, but I'm not a soulless trawling algorithm, so what do I know?). Of those 7 have been granted, and only 3 have been denied. Normally I would put in the percentages here, but I trust you all to do the math on this one.
This brings to mind another question, which I shall raise in a further blog post on another slow day, does Judge Connolly receive fewer motions like these than our judges who don't specifically require good cause? I.e., are parties who would otherwise just file late contentions and take their shot under Pennypack factors deciding not to do so because they know they can't show good cause?!
All this and more on next weeks episode of IPDE! (Batman theme plays)
Since 2021, Judge Connolly has occasionally issued orders asking parties to either consent to a magistrate judge or have their case re-assigned to a visiting judge. The parties in three out of five of that first round of cases consented, and we've seen several rounds of these orders since then.
The Court also offered parties a similar choice in the wake of the departure of Judge Stark, before Judge Williams was confirmed. I haven't seen hard numbers on this, but in May of last year we estimated that around 20% of those cases consented rather than waiting for the new district judge and risking re-assignment to a visiting judge.
These consent-or-visiting-judge referrals have continued through Judge …
An interesting note on the importance of translation -- and accurate translation -- from Judge Connolly last week in Doda v. Waste Management, Inc., C.A. No. 17-604-CFC (D. Del. Jan 13, 2022).
The plaintiffs were an Italian engineer and his companies who were doing business with an American firm pursuant to an NDA. The NDA required the parties to mark any confidential information "'Confidential,' 'Proprietary,' or [with] some similar designation." Plaintiffs alleged that defendant breached the agreement by disclosing such confidential information to the patent office, which later published it.
The issue? The "designation" was only in Italian.
In their posttrial Proposed Findings of Fact, Plaintiffs state that this paragraph [below a signature block …
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 twoof 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
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