"Loco-Crazy Good Cookers, Inc." wins IP/DE's 2024 Best Company Name Ever award.AI-Generated, displayed with permission
Parties sometimes think that a stay pending an instituted IPR is almost a given. But while a stay is more likely than not, it's not a sure thing.
Last month we saw a even a stipulated stay pending IPRdenied by visiting Judge Choe-Groves (in the time since, by the way, that denial has held firm, and the Court issued a scheduling order).
This week Judge Fallon denied a stay pending an instituted IPR in North Atlantic Imports, LLC v. Loco-Crazy Good Cookers, Inc., C.A. No. 23-999-GBW-SRF (D. Del. Nov. 19, 2024). The Court noted that there were non-patent claims …
Today's post will be the final one for a bit on the subject of indefiniteness rulings at Markman. Long ago, we wrote this post cataloguing which Delaware judges allowed the parties to argue indefiniteness during Markman and which deferred the issue until summary judgment.
At the very bottom of that post, we had a note that Judge Williams had invited indefiniteness argument at a hearing, but we have not yet noted a case where he actually found a claim indefinite.
Until today.
AI-Generated, displayed with permission
Last week, Judge Williams issued his claim construction ruling in Cisco Sys. Inc v. Ramot at Tel Aviv Univ. Ltd., C.A. No. 21-1365-GBW (D. Del. Nov. 12, 2024). In that decision, in addition to construing several terms, Judge Williams found several indefinite:
The Court holds that claims 45-47 and 49-54 of the '998 patent are "invalid for indefiniteness [as] [those] claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention." Nautilus, 572 U.S. at 901. Specifically, with respect to those preceding claims, "the problematic limitation" is the "wherein the N bits of the N bit digital input data word are mapped" clause, which "although not directed to a function performed by a user[,] . . . appear[s] in isolation and [is] not 'specifically tied to structure."' KOM Software, No. CV 18-160-WCB, D.I. 116 at 34 n.6.
Id. at 15-16.
The details are pretty straightforward and not worth recounting here, but there can no longer be any doubt that Judge Williams will kill a claim at Markman.
Artist's interpretation of the Sword of Algorithms piercing the Shield of § 230.AI-Generated, displayed with permission
There has been a lot of political talk lately about § 230 of the Communications Decency Act, 47 U.S.C. § 230, which provides immunity for certain kinds of claims related to user-generated content on social media. It's a hot-button, IP-adjacent topic.
Judge Williams today addressed the question of whether § 230 operates to shield Meta / Facebook from the effects of its algorithms. The case is between former Governer Mike Huckabee and Meta, and involves privacy, publicity, false light, and unjust enrichment claims related to ads Facebook hosted that suggested Governor Huckabee was associated with a CBD product:
You don't have to depose the other parties' experts, and strategically, sometimes it can make sense not to. If you have a good sense that their report(s) are flawed and they may use the deposition to try to add key information to the record (regardless of your questions), it may make sense to avoid the deposition altogether.
That strategy is less common but certainly not unheard of—assuming trial counsel is confident in their positioning and ability to …
Deposition errata is often the source of mild-moderate disagreements. It's not uncommon to see complaints that an errata is really just an attempt to reform otherwise damaging testimony, rather than a mere correction of a misheard word. Occasionally the issue will be large enough to warrant a discovery dispute.
Less common, but not unheard of, is a dispute over the accuracy of a transcript of a Court hearing. To begin, unlike in depositions, the Court reporter normally does not formally request errata except in the case of trials. You get what you get and anything after that is in something of a procedural gray area. To the extent the parties do have errata disputes, there is no clear route to …
This is something we've talkedabout before, but the blog is always picking up new readers, so I figured it's worth revisiting for the newcomers.
Yesterday, Judge Noreika denied a stipulation to extend the page limits for the briefing on a motion to dismiss from the default 20/20/10 (opening/answering/reply) to 30/30/10:
ORAL ORDER re 16 Stipulation Regarding Motion to Dismiss - IT IS HEREBY ORDERED that the stipulation is DENIED. The Court will not extend the page limits. ORDERED by Judge Maryellen Noreika on 11/12/2024. (dlw) (Entered: 11/12/2024)
Advanced Accelerator Applications USA, Inc. v. Curium US LLC, C.A. NO. 24-1161-MN, D.I. 17 (D. Del. Nov. 12, 2024).
Monday is Veterans' Day, a federal holiday. Keep that in mind if you have dates calendared for Monday—they may move under FRCP 6.
Of course, if you have a hard November 11, 2024 deadline set in, for example, a scheduling order, that deadline does not move. So also be aware that CM/ECF is also scheduled to be down until 5pm on Monday:
CM/ECF 1.8.1 Update
CM/ECF WILL BE UNAVAILABLE FROM 9 A.M. ON SUNDAY, NOVEMBER 10th, . . . UNTIL 5 P.M. ON MONDAY, NOVEMBER 11th, 2024
The U.S. District Court for the District of Delaware will upgrade its CM/ECF system to version 1.8.1 starting at 9:00 AM on Sunday, November 10th 2024. Please note that CM/ECF will be unavailable, as outlined above, during the upgrade.
To the extent you have a filing due Monday, now might be a good time to discuss an extension until after the Court's 5pm deadline.
We’ll have no post on Monday, since the Court is closed and there haven’t been a lot of opinions this week - see you Tuesday!
This may seem obvious to practiced litigators, but the pretrial order is no joke. It defines the scope of the claims and defenses at trial, and omitting things from it is a very risky proposition. Be careful.
That's why parties sometimes end up with ridiculously long pretrial orders—they don't expect anyone to read them front to back, but they want to make sure nothing is waived.
We saw another example of this yesterday in In Re: Ozempic (Semaglutide) Patent Litigation, C.A. No. 22-MD-3038-CFC (D. Del.). There, the defendants intentionally omitted their obviousness-type double patenting invalidity defense from the pretrial order, in light of a recent Federal Circuit case clarifying the rules …
ChatGPT comes through again...AI-Generated, displayed with permission
At the FCBA's 2024 Bench and Bar, some of the speakers mentioned that referrals to visiting judges referrals to should be slowing. I've noticed that that seems to be correct — it feels like there have been fewer referrals to visiting judges lately.
Some basic Docket Navigator searches seem to confirm it. I found zero new referrals to visiting judges in the last three months (not counting related-case referrals). That's the longest gap we've had this year, after batches of visiting referrals in January, February, April, July, and on August 1. But Docket Navigator also says that there were even longer gaps last year, including one from January - May and another …
Before you get too excited, defendants, this case involved a scheduling order using Judge Connolly's form, which provides only a single round of infringement and invalidity contentions, and explicitly requires good cause to amend.
Most District of Delaware scheduling orders include two rounds of contentions (initial and final), with the second round typically coming around the close of fact discovery. It is unlikely to be as difficult to amend in cases like those.
Regardless, I thought this was an interesting result worthy of a post. In Cognipower LLC v. Fantasia Trading, LLC, C.A. No. 19-2293-JLH-SRF (D. Del.), the Court stayed the case …
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