We've posted twicerecently on Magistrate Judge Tennyson's practices regarding how long the parties should meet-and-confer before bringing a discovery dispute. In the prior posts, the parties presented a single discovery dispute issue. The parties initially met-and-conferred for 12 minutes, and the Court sent them back to meet-and-confer further. The Court later OK'd the dispute after they spent a total of 31 minutes on the issue.
On Friday, the Court issued an order in another case giving some more insight into this meet-and-confer requirement. In Media Content Protection LLC v. Dell Technologies, Inc., C.A. No. 20-1240-CFC-EGT (D. Del.), the parties filed a motion to raise three discovery issues with the Court, including two …
All of the Delaware judges have rules in their form scheduling orders limiting the circumstances in which summary judgment motions can be filed. Most notably, each forbids the filing of summary judgment motions in ANDA cases absent leave. In other patent cases, SJ motions cannot be filed more than 10 days before the deadline for dispositive motions without leave.
As part of my ongoing series of posts about analytics when I have nothing else to write about (why can't I find Al Capone's cave?), I've compiled some statistics on how likely these motions are to be granted, based on the issue (infringement, validity, something weird).
Looking at all the cases for the last three years (and a bit extra so I could get to 20 and not have to do math) the general success rates for these is a pretty abysmal 20%. Validity issues fair a bit better at about 29%. Infringement/noninfringement also beat the average at about 25%. Weirdly, inequitable conduct seems to fair the worst, at a whopping 0.0% (rounding up).
I've got some more analytics on specific judges, but I'm saving them in case I need another one of these on Thursday.
We were a bit slow on the draw on this one. You may have already read about it in Law360. But it's significant enough that I think we should post about it anyway.
Last month, in Vestolit GmbH v. Shell Chemical LP, C.A. No. 24-1401-CFC (D. Del.), two applicants filed a 28 U.S.C. § 1782 application seeking leave to serve subpoenas on a company in the United States to get discovery related to a foreign proceeding.
The application itself referred only to subpoenas against the company, but the proposed order incorporated a subpoena against an individual, who was not mentioned in the application itself.
The Court rejected the application, at least initially, …
On Monday, we posted about how the Court had denied a motion to bring a discovery dispute, because a 12-minute meet-and-confer was not long enough.
If you were curious, as I was, about how long of a meet-and-confer would be sufficient, we now have a data point. The parties re-filed their letter after conducting an additional19-minute meet-and-confer, and the Court granted their motion and permitted them to bring the dispute to the Court.
So the data points we have so far are that 12 minutes is insufficient, and that two meet-and-confers totaling 31 minutes(12+19) were sufficient.
There is obviously a range of times in between those numbers that might or might not …
When people say that D. Del. is "against litigation funding," they imply that the Court has some kind of general bias against parties who use litigation funding. That's wrong. I've never seen a Delaware judge dislike or rule against a party because the party used litigation funding. And the Court as a whole is certainly not biased against plaintiffs (or defendants), funding or no funding.
With all of that said, I thought it was worth noting that Judge Burke recently ordered production of litigation funding material to the extent it related to the value of the patents.
After reviewing litigation-funding-related documents in camera, he ordered production of those that relate to the value of …
Old timers remember RainDance Techs., Inc. v. 10X Genomics, Inc., Civil Action No. 15-152-RGA, 2016 U.S. Dist. LEXIS 33875 (D. Del. Mar. 4, 2016). After the appendix of forms was banished from the Federal Rules of Civil Procedure, Judge Andrews' opinion in Raindance was among the first in the nation to hold that complaints alleging infringement had to do more than simply list the patent and the product as in the old Form 18.
For a couple years it was the citation of choice in the district for motions to dismiss, with every defendant arguing that the complaint lacked sufficient detail relating their product to the asserted patent claims.
Will they use a phone like this? No. But I couldn't find a good image for "Zoom meeting where everyone but that one person has their camera off."Quino Al, Unsplash
We haven't had many posts yet on the Court's newest magistrate judge, Judge Tennyson. But we got an interesting data point on Friday when the Court ruled on a motion to schedule a teleconference to resolve a discovery dispute.
In Inari Medical, Inc. v. Inquis Medical, Inc., C.A. No. 24-1023-CFC-EGT (D. Del.), Chief Judge Connolly referred all discovery disputes to Judge Tennyson. Shortly thereafter, the parties submitted a form motion following her guidelines to initiate a discovery dispute.
Claim construction in this case was originally set for 2020—before the parties stipulated to cancel it.Kelly Sikkema, Unsplash
Yesterday, Judge Hall granted a post-trial JMOL motion in Taiho Pharmaceutical Co., Ltd. v. MSN Laboratories Private Ltd., C.A. No. 19-2342-JLH (D. Del.), finding no infringement as a matter of law.
The motion resolved a relatively straightforward claim construction issue: what the word "purity" means in the claims.
The patentee said it meant chemical purity, while the accused infringer argued it meant "polymorphic" purity. The patent as a whole is directed towards crystal forms of a drug, and discussed purity of the crystal form—"polymorphic" purity—but also mentions chemical purity. The patenteee agreed that, if "purity" means polymorphic …
Unlike motions for reconsideration (or reargument, as we call them in Delaware), the local rules do not provide any particular guidance on what such a motion should like like, or the standard that needs to be met. I've often seen them criticized as essentially stealth motions for reconsideration designed to circumvent the rigid requirements of such a motion.
I've never done a full analysis of the likelihood of such a motion being granted (hope for a slow news day next week) but my guess is that most of them go down like last week's ruling in Aortic Innovations, LLC v. Edwards Lifesciences Corp., C.A. No. 23-258-JPM, D.I. 222 (D. Del. Jan 17, 2025).
In that case, the parties (weirdly) filed competing motions to extend the fact discovery deadline on the same day, presenting slightly different proposed schedules that allowed additional time for the completion of depositions and whatnot. Visiting Judge McCalla resolved the motions and adjusted the schedule in a brief oral order consisting only of the relevant dates:
ORDER SETTING DISCOVERY SCHEDULE: Fact Discovery Deadline due February 27, 2025; Initial Expert Witness Disclosures Due April 3, 2025 . . . .
After the Court extended the schedule, however, the Defendant issued several new subpoenas to third parties. Plaintiff then moved for an order clarifying that the extension only allowed for the completion of existing discovery, and not for the service of new requests. The main argument was that both parties' motions had focused on the time necessary to complete the existing discovery, rather than the need for additional requests.
Judge McCalla denied the motion, finding no ambiguity requiring clarification in the prior order amending the schedule:
In its Order Setting Discovery Schedule, the Court extended the fact discovery deadline to February 27, 2025. Plaintiff argues neither party requested an extension for the purpose of serving additional fact discovery. However, the Court used its “broad discretion” to grant the Parties’ requests so that the Parties could complete discovery as a whole. A fact discovery deadline is just that: a deadline to complete all discovery promulgated by the Parties.
To the extent the Order Setting Discovery Deadline is “ambiguous or vague” the Court makes clear: the Order Setting Discovery Schedule only established a deadline of completion and did not set out a cap on that discovery
Id. at 3-4 (internal citations omitted).
The order is additionally interesting for having one of the few recitations for the standard in moving to clarify.
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