A Blog About Intellectual Property Litigation and the District of Delaware


DED
United States District Court for the District of Delaware

Mel Poole
Mel Poole, Unsplash

Judge Burke issued an oral order earlier this week with some interesting language criticizing the party's attempt at an amended complaint.

In Midwest Energy Emissions Corp. v. Arthur J. Gallagher & Co., C.A. No. 19-1334-CJB (D. Del.), the plaintiff accused a very large number of entities—More than 50, it looks like—with infringement of a number of patents, all in a single combined action.

Earlier this year, it moved to amend its complaint to add additional defendants it alleged were parent companies of defendants who were as acting as the parent companies' "alter egos and agents." Judge Burke granted this request as to one party, for which the complaint included more detailed factual allegations, …

You were warned this would happen.

Race Track
Adi Goldstein, Unsplash

Judge Williams issued in interesting order today in CAO Lighting, Inc. v. General Electric Company, C.A. No. 20-681-GBW, D.I. 330 (Oral Order) (D. Del. Sept. 20, 2022). CAO is one of Judge Williams' new cases which is nearest to trial (currently its set for October 24) and it has several pending SJ motions from both sides.

Taking a page from Judge Connolly's playbook, Judge Williams ordered the parties to submit letters ranking their respective SJ motions, "with the understanding that once the Court denies summary judgment as to any single ground raised in [the party's] motion, the Court will not address any summary judgment grounds that were …

Our status report, your honor? We're all good.
Our status report, your honor? We're all good. Sincerely Media, Unsplash

As we've mentioned in the past, in D. Del. patent cases, the Court often sets deadlines for submission of a "status report" (or, sometimes, a "joint status report" or "interim status report").

These orders can be somewhat vague. The Court doesn't always request "a joint status report regarding xyz." Instead, at times, it will issue a generic request for a status report, like this:

ORAL ORDER - IT IS HEREBY ORDERED that, on or before 9/23/2022, the parties shall submit a joint status report. ORDERED by Judge Maryellen Noreika on 9/16/2022.

To which the natural human response is "a status report about what?" Usually, though, it's pretty …

Fire Extinguisher
Piotr Chrobot, Unsplash

An interesting transcript just hit the docket in CBV, Inc. v. ChanBond, LLC, C.A. No. 21-1456-GBW (D. Del.), a contract case, after the transcript restrictions expired. The hearing itself took place back in April, before Judge Noreika.

In the case, defendant ChanBond filed a letter seeking emergency relief after it inadvertently served a sealed filing on out-of-town counsel for another party, who allegedly took the position that he need not maintain the confidentiality of the document, either under the Court's order sealing the document or local rule 26.2 (which provides a confidentiality obligation prior to the entry of a protective order, as explained below).

Out-of-town counsel responded to the request for emergency …

Deal with it kitty, you're going to be famous
Deal with it kitty, you're going to be famous Go to Bogdan Farca's profile Bogdan Farca, Unsplash

Reader, I feel like we know each other, so I'm going to level with you. We are going to write a post about absolutely everything Judge Williams does for the next month or so.

New standing order? POST.

First trial? POST.

Pets a cute cat? 2 POSTS.

If you stop clicking? We'll just start juicing the headlines (Judge Williams DESTROYS cat!). This is the world we all live in now.

On a totally unrelated note, Judge Williams issued an opinion today continuing the trend of longer and longer IPR stays. The parties in Personal Genomics Taiwan, Inc. v. Pacific Biosciences of California, Inc., No. 19-1810-GBW-MPT, had initially stipulated to a stay pending an IPR. That stay expired in February when the case was still assigned to Judge Stark. Two weeks later the defendant moved to stay pending appeal of the IPR (which had been only partially successful). Briefing closed right around the time the case was transferred ...

Quilt
Olga Ferina, Unsplash

Judge Williams has now posted his form scheduling orders on the District of Delaware website.

I took a look through his non-ANDA scheduling order, and it will be extremely familiar to Delaware practitioners. It mostly tracks Judge Noreika's form order.

Judge Williams' form order does, however, pull in portions from other Delaware judges' form scheduling orders. Here are some changes in Judge Williams' new form order as compared to Judge Noreika's form:

  • Discovery disputes and motions to amend or strike use language from Judge Stark's form scheduling order.
    • Parties sometimes get tripped up on this, and forget that motions to amend or strike have special rules—so keep that in mind if you have a Judge …

So Noble
So Noble Navi, Unsplash

The law can always surprise you. Sometimes this is a bad thing. For instance, I was surprised and saddened to learn that, in the city of Wilmington, you can only have a chicken if it is an emotional support animal who lives at least half of the year in your home. Unfortunately, Learned Claw is not yet house-trained.

Sometimes, though its a good surprise. The sort that you can wring a blog post out of if you can pad it with a personal anecdote (*coughs*).

For instance, I was surprised to learn that there was a dispute about the standard for reviewing one of the most common disputes in all of Delaware -- whether to strike contentions under the Pennypack factors.

The specific context at issue in the painfully long-running case of TQ Delta LLC v. Comcast Cable Communications LLC, was an objection to a Special Master's Order. The underlying dispute was your usual Pennypack issue, with one party complaining that the other had disclosed a new DOE theory too late in the game, and the other arguing that the theory was not really new at all. The Special Master went through all of the usual factors and ultimately struck ...

Bullet Holes
Mykola Makhlai, Unsplash

At this point it's clear that Chief Judge Connolly's standing orders regarding initial disclosures and litigation funding are no joke, and plaintiffs need to comply with them or risk consequences.

Today, the Court took the further step of requiring the owners of plaintiff entities in 14 cases to appear in-person for evidentiary hearings regarding compliance with his standing orders.

The orders today generally took the following form:

Whereas the amended corporate disclosure forms Plaintiff filed in the above-captioned cases identify [owner name(s)] as Plaintiff s owner; and
Whereas the Court has concerns about whether Plaintiff has complied with the Court's standing order regarding third-paty litigation funding [or about the accuracy of the corporate disclosure …

markus-spiske-Cf5kL7vcF6U-unsplash
Markus Spiske, Unsplash

I am not, as a rule, a giggler.

However, the timeline of events below—relatable in their banality, painful in their recounting—did elicit an ungentlemanly outburst when I read it this morning.

August 16 - Judge Hall holds a hearing on a 101 motion in Innovative Memory Systems Inc. v. Micron Technology Inc., C.A. No. 14-1480-RGA-JLH

August 17 - The defendant submits a succinct, 1-page, notice of subsequent authority, citing a recent 101 opinion from Judge Andrews.

August 19 - Plaintiff files a 1.5 page response to the notice

August 29 - Defendant responds with a 1.5 page response to the response (sur-response?)

August 31 - Plaintiff responds again about this same opinion (a sur-sur-response?)

September 6 …

Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Andrew Russell, CC BY 2.0

Today we started seeing cases re-assigned to incoming Judge Williams. So far, we've seen re-assignments in cases from Chief Judge Connolly and Judge Noreika, including in a case that is set for trial next month. I've only seen one of our firm's vacant judgeship case re-assigned so far, but I would expect many or all of those cases to go as well—we'll see.

Judge Williams doesn't yet have a listing on the District of Delaware website, but we'll keep an eye out for that too, and we'll most likely have a post about his procedures.

UPDATE: Judge Williams' page is now …