A Blog About Intellectual Property Litigation and the District of Delaware


DED
United States District Court for the District of Delaware

Pennies.
Pennies. Mark Bosky, Unsplash

I always find it interesting to see what kinds of facts are successful in a motion to strike. As I've mentioned, motions to strike in the Third Circuit are governed by the Pennypack factors, which can be tricky to meet and often favor lesser remedies (although the Court does strike things).

Here is what it took to warrant striking portions of an opening infringement report Arendi S.A.R.L. v. LG Electronics, C.A. No. 12-1595-LPS (D. Del.):

  • Disclosing infringement contentions against five new products for the first time in an expert report;
  • Relying on previously undisclosed evidence;
  • Doing so in the 8th year of a case (albeit one currently without a trial …

Consistent with a recent trend in the District, Judge Thynge recently ordered parties to justify the continued sealing of a proposed amended complaint—even though the plaintiff had followed the ordinary sealing procedures and had submitted a redacted version of its motion to amend, including redactions to the proposed amended pleading.

Shortly after she issued her R&R denying plaintiff's motion to amend, Judge Thynge put the following notice on the docket:

ORAL ORDER: Although the Motion to Amend the Complaint was filed under seal, within ten (10) days of the docketing of the Report and Recommendation at DI 266, counsel shall file an explanation, limited to two (2) pages, as to why the Amended Complaint should remain under seal. Ordered …

Chief Judge Stark on Friday scheduled the first post-COVID-19 jury trial that I've seen, in Guardant Health, Inc. v. Foundation Medicine, Inc., C.A. No. 17-1616-LPS-CJB, D.I. 487 (D. Del. Oct. 16, 2020). (The potential Judge Noreika trial I mentioned recently is not going forward).

The Court had offered the November 30 date late last month. The defendant objected to it due to a conflict. The defendant also argued that the jury pool will not be representative, lacking older jurors, and that holding a trial would go against CDC guidance.

The Court was not persuaded. It did, however, set the following restrictions:

  • No live witnesses: The Court accepted a proposal that since not all witnesses can testify …

Google tells me
Google tells me "hide the ball" is a football thing. Dave Adamson, Unsplash

In Guest Tek Interactive Entertainment, Ltd. v. Nomadix, Inc., C.A. No. 18-1394-RGA (D. Del.), plaintiff sent RFPs for various financial documents, but defendant produced only a single page profit and loss statement for each year, claiming no more was available.

Plaintiff brought a discovery dispute and asked Judge Andrews to order production of any further documents in defendant's possession.

Judge Andrews declined. Instead, he sua sponte suggested that the parties resolve this via a 30(b)(6) deposition about the kinds of financial information that defendant keeps:

[D]o a 30(b)(6) deposition and find out if there are any other documents. And you know, …

Artist's Rendering of First 101 Day Hearing
Artist's Rendering of First 101 Day Hearing Execution of Mary, Queen of Scots, from "Illustrated London News", William Luson Thomas

It was not so long ago that plaintiffs might enter a § 101 day hearing before Judge Stark with hats in hands, ready to plead for any small mercy. To some, having one's case set for a § 101 day hearing was to know the day and the hour. But that was back in the heady days of early 2019. With two new § 101-day rulings issued by Judge Stark just this week, plaintiffs need no longer dread these (approximately) quarterly events.

Claims of All Three Patents Invalidated At Inaugural § 101 Day

At the inaugural hearing in …

Unsurprisingly, in light of COVID-19, recent signs indicate that the Court is all booked up for this year, and probably for a large part of next year.

Here, for example, is a Judge Stark order from yesterday:

ORAL ORDER: Having discussed with the parties on repeated occasions whether and when to schedule this patent infringement case for a jury trial (see, e.g., D.I. 474, 549, 583, 590, 591, 593, 596, 605, 607, 608, 610-15) and having found (unfortunately) no date that is reasonable and available to all parties and to the Court, IT IS HEREBY ORDERED that trial in this matter is CONTINUED to a DATE TO BE DETERMINED, most likely in 2021 (and certainly NOT in 2020). IT …

Judge Burke granted a motion to strike yesterday where the plaintiff attempted to add indirect infringement allegations in final infringement contentions, but had not pled them in the complaint.

Per Judge Burke:

It is undisputed that Plaintiffs have never pleaded indirect infringement of these patents, (D.I. 170 at 1), and so any portion of their [final contentions] that relate to that subject matter are simply about infringement claims that are not a part of this case.

He also preemptively denied any future request to amend the complaint as coming too late:

Although they have not filed a formal motion seeking to amend their currently operative complaint to include such [indirect infringement] claims, to the extent Plaintiffs suggest they would …