When I was young, I had a pet crab. Not a hermit crab, but a big honking giant land crab. He lived in a terrarium in my room and I would wave at him every day when I left for school. He would wave back. This is the best part of having a crab.
What you might not know about crabs, is that they're smart. They are curious creatures that will spend their whole day wandering around foraging. They will slowly stack rocks in one corner of their tank to make a ramp. They will specifically make this ramp in the corner of the tank that has the inlet for the water filter. They will (somehow) remove the clamps holding the top down and seize freedom at any cost. It's pretty much like the velociraptors in Jurassic Park.
Longtime readers will have guessed that this story is leading to a development in the Mavexar saga. And readers, I will not disappoint you. Just hours ago, Judge Connolly issued a memorandum order in the Nimitz case setting ...
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 …
Rule 16(b)(4) is deeply ingrained in the mind, body and soul of every DE lawyer. To modify the scheduling order, one must show good cause. Good cause, in turn, hinges upon the diligence of the movant.
More than 1,000 orders in DE patent cases analyze whether a party was diligent. Some have praised the herculean efforts of the parties (not a lot of those, honestly), while others cursed their lazy hides for daring hobble up the Courtroom steps (somewhat more common).
"Diligence"AI-Generated, displayed with permission
I have analyzed every single one to determine how often the Court found diligence.
I'm sorry that was a joke. We have a GoFundMe for an intern. Please donate if you would like that level of analysis. Instead I have looked at the last 10 such opinions and orders. Of those, a scant 3 found the movant diligent and granted the requested schedule extension, whilst 7 found the movant had delayed and denied the request.
Obviously this is a fact-dependent inquiry, but it's something to consider the next time you move for an extension.
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 …
It seems like only yesterday I was discussing the rare case where a third party moved to unseal the docket in a DE case. In fact, it was 12 days ago—time flies when blogging.
AI-Generated, displayed with permission
Well it happened again, and this time we have an opinion.
The intervenors in CBV, Inc. v. ChanBond, LLC, C.A. No. 21-1456 (D. Del. Mar 28, 2023) (Mem. Order) were shareholders in the defendant, Chanbond, who sought to unseal various and sundry filings including the complaint, answer, and briefing on a TRO. The parties (perhaps readers of the blog?) largely agreed to unseal the filings but insisted that the dollar amount of a confidential settlement agreement should remain redacted.
Typically, actual dollar amounts contained in confidential agreements are one of the few things that pass muster on a motion to seal. The twist was that the dollar amount had accidentally been filed publicly in a different case months earlier.
Billy tells secrets, it is his truest natureAI-Generated, displayed with permission
Oops.
Nevertheless, the parties (as well as several third-party signatories to the agreement who submitted their own briefs) insisted that ...
The defendant moved to stay the second trial because nearly all of the patents at issue had been found invalid—or were in danger of being found invalid—during a pending re-exam proceeding. The parties finished briefing, but the Court has not yet ruled or heard oral argument on the motion to stay. …
"From now on, your discovery disputes will be heard at the summit . . . "Alexander Milo, Unsplash
It's always good to know the limits when it comes to discovery disputes. In some cases, parties just can't seem to work together on discovery, and the parties end up bringing a lot of disputes.
At some point, the number of disputes may push the Court over the line. Famously (in Delaware—so perhaps not "famously" at all), former Chief Judge Sleet used to limit parties to three discovery disputes in patent cases before requiring them to seek leave. I don't know of any similar explicit limits set by any of our current judges, but pushing things too far can still …
There are only so many ways to get rid of claims early in the case. One of them is arguing indefiniteness at claim construction, for the judges who permit that.
Indefiniteness at Markman typically invoves either a Nautilus-style argument about a term lacking reasonable certainty, or a § 112 ¶ 6 argument that a means-plus-function term lacks corresponding structure in the specification.
Today, Judge Andrews addressed such a § 112 ¶ 6 argument, and found both that software terms reciting an "engine" were means-plus-function terms, and that the terms lacked corresponding structure in the specification. First, he found that "engine" is a "nonce word" that doesn't refer to a specific structure—breaking with at least one case that found the opposite:
I agree with Defendant that “analysis engine” is a means-plus-function limitation. Defendant has overcome the presumption that “analysis engine” is not subject to § 112, ¶ 6 by showing the claim fails to “recite sufficiently definite structure.” . . . The parties agree that an “engine” in this context refers to a program or part of a program to perform a function or manages data. . . . “Engine” appears to be synonymous with “module,” which is recognized as a common “nonce” word. Williamson, 792 F.3d at 1350 (finding “module” to mean “a generic description for software or hardware that performs a specified function” to be a “well-known nonce word”); see also Parity Networks, LLC v. ZyXEL Commc'ns, Inc., 2020 WL 8569299, at *6 (C.D. Cal. Dec. 22, 2020) (finding “engine” was a nonce word in the term “multicast engine”). But see Stragent, LLC v. Amazon.com, Inc., 2011 WL 13152568, at *4 (E.D. Tex. June 27, 2011) (finding “engine” conveyed structure and was not subject to § 112, ¶ 6).
The argument that the "analysis engine" was part of the novelty of the patent was not enough to save it—and that argument may have even hurt the plaintiff ...
Judge Fallon made an opinion public today that deals with whether a plaintiff can get discovery on unlaunched, abandoned, and future products in the lead up to a preliminary injunction hearing. The Court held that discovery on those products was not proportional to the needs of the case:
Zwift has shown that the document discovery requested by Wahoo is not proportional to the needs of the case at this stage of the proceedings. (D.I. 72) The complaint establishes that Wahoo was aware of Zwift’s unlaunched and abandoned hardware products, yet it did not raise these products in its motion for a preliminary injunction, indicating that the relevance of the requested discovery to the preliminary injunction inquiry …
Photograph of all of plaintiff's likelihood of success arguments securely located in one basket.Court, Unsplash
Judge Williams ruled on a preliminary judgment motion yesterday in Cirba Inc. v. VMWare, Inc., C.A. No. 19-742-GBW (D. Del. Mar. 9, 2023). In that case, the plaintiff had originally gone to trial back in 2020, and won a $237 million jury verdict, plus a jury finding of willful infringement. Id., D.I. 550 at 6.
The Court previously vacated that win, however, because it turns out that one of the plaintiffs, Cirba Inc., had assigned all rights in the patent at issue to another entity, Cirba IP. The Court held that the re-assignment meant that Cirba Inc. lacked standing such that it should not have been part of the trial, and that including Cirba Inc. in the trial impacted the arguments enough to warrant a new trial. Id. at D.I. 752, 946.
Yesterday, the Court addressed plaintiff's motion for a preliminary injunction pending the new trial. It looks like it was an easy decision for the Court, because plaintiff relied entirely on the previous trial win to show a likelihood of success—despite the fact that the Court had granted a new trial:
Rather than brief why it will likely prove infringement, Cirba summarily states that it "is likely to succeed on the merits of its patent infringement claim because it already has," referring to the vacated verdict from the first trial. . . . This Court, however, granted VMware's motion for a new trial. . . . "[I]t is quite clear, that the order granting the new trial has the effect of vacating the former judgment, and to render it null and void, and the parties are left in the same situation as if no trial had ever taken place in the cause." United States v. Ayres, 76 U.S. 608, 610 (1869). Thus, Cirba has made no "clear showing" that it will likely prove infringement.
It's not hard to see what plaintiff was thinking here. On the surface, the Court ...
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