A Blog About Intellectual Property Litigation and the District of Delaware


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United States District Court for the District of Delaware

A Handy Reminder that LR 16.4(b) Exists (Be Careful About Those Stips Extending the Fact Discovery Deadline)

Andrew E. Russell, June 23, 2023
Stipulation

Puzzle
Sigmund, Unsplash

As we've mentioned, Local Rule 16.4(b) must be one of the most frequently-forgotten local rules in the District of Delaware. It sets forth that a party must include certain things in a stipulation extending the fact discovery or trial dealine:

Unless otherwise ordered, a request for an extension of deadlines for completion of discovery or postponement of the trial shall be made by motion or stipulation prior to expiration of the date deadline, and shall include the following:
(a) The reasons for the request; and
(b) Either a supporting affidavit by the requesting counsel’s client or a certification that counsel has sent a copy of the request to the client.

LR 16.4.

I noted …

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Annual FBA Lunch: Court Discusses State of Court, Expansion of Judges in 2024

Andrew E. Russell, June 21, 2023
Annual Report Congestion

District Court Seal

The District of Delaware held its annual FBA luncheon today. The presentations were wonderful, as usual, and covered the typical topics. Here are some of the notable points from Chief Judge Connolly's presentation:

  • The state of the Court is excellent, and we are back to having a full bench.
  • The Court will be doing even better next year, when Judge Andrews is planning to take senior status but continue to take cases, which will effectively give the Court an additional judge.
  • The nomination process for filling Judge Andrews' seat once he takes senior status next year is proceeding "expeditiously."
  • The Court remains very busy:
    • It's the 4th busiest court by weighted case volume, although two of the higher-weighted courts …
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Objections Are Not Evidence

Nathan R. Hoeschen, June 18, 2023
RFAs Reargument

Judge Andrews issued an interesting opinion last week, in another case that breaks new ground on reconsideration. The (extremely) abridged and expurgated procedural history in MirTech, Inc. et al v. AgroFresh, Inc., C.A. No. 20-1170-RGA (D. Del. June 14, 2023) (Mem. Op.) is as follows:

  • Agrofresh moved for summary judgment on one of its counterclaims alleging breach of a settlement agreement requiring the plaintiffs to assign them several foreign patent applications
  • The plaintiffs responded by arguing that Agrofresh had actually dropped most of these claims. In support, they cited an RFA objection where Agrofresh argued that "[n]o claim or defense at issue in this lawsuit . . . relates to [the allegedly dropped applications]."
  • The Court denied …
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Important Mechanical Note for Filings with Visiting Judges Kennelly and Wolson—And Maybe for All D. Del. Filings

Andrew E. Russell, June 15, 2023
Visiting Judges CM/ECF

At a hearing today, Judge Kennelly set forth his preferences on how parties files documents in CM/ECF. He explained that he deals with all filings electronically, and large exhibits as permitted by the Delaware CM/ECF system interfere with his work flow.

He threatened to deny motions going forward (at least in that case) if parties combine exhibits in that way, specifically pointing to the following docket item:

Judge Kennelly Example

As you can see in the highlight, the party combined multiple exhibits into sub-filings, which makes it difficult and slow to download, and impossible to download individual exhibits.

Judge Kennelly prefers that parties do it this way:

Judge Kennelly Example - Correct

Visiting Judge Wolson has expressed similar concerns for similar reasons, and his procedures go a step …

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Answers to Some Common Questions About Joint Claim Construction Briefing in D. Del.

Andrew E. Russell, June 14, 2023
Joint Claim Construction Briefing Sandbagging

We're really starting to run out of good, free pictures of sand bags for these posts.
We're really starting to run out of good, free pictures of sand bags for these posts. Karen Barrett, Unsplash

At this point, all of the D. Del. judges have adopted a joint claim construction brief procedure invented by Judge Andrews, where the parties serve opening, answering, reply, and surreply briefs, and then file a single combined joint claim construction brief that presents the arguments term-by-term. This means that the parties and the Court can work from a final, combined joint brief where all of the arguments match up.

This is a great procedure and everyone seems to like it. Certain questions tend to come up about it, though.

Common Questions on the Joint Claim Construction Brief

First, parties …

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Thoughts On the Mavexar "Mansplaining Brief," Which Accuses the Court of "Gender Harassment and Intimidation"

Andrew E. Russell, June 12, 2023
Mavexar Reconsideration

"Sure, I had my LLC sue a bunch of people in Delaware, but I didn't think the Court would actually make me GO there." Andrew Russell, CC BY 2.0

I guess our post about the Mavexar hearing last week was remiss in failing to talk about the "mansplaining brief." I've had a couple of people ask me about it. Here is the background and some quick thoughts.

Chief Judge Connolly Orders Mavexar-LLC's Sole Member to Testify In Person

The short version of the leadup: Mavexar is an entity that creates LLCs to assert patents against tech companies for quick settlements, often in Delaware. The LLCs take all of the risk, and Mavexar keeps 90-95% of the profits while hiding its …

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Court Rejects Mavexar Attorneys' Motions to Withdraw, Grills Them on Efforts to Hide Mavexar from Court

Andrew E. Russell, June 8, 2023
Mavexar

Backertop's—or Mavexar's—Two Attorneys
Backertop's—or Mavexar's—Two Attorneys AI Generated

The Court held a lengthy hearing in the Backertop cases today. These are Mavexar-related actions and, if you recall, they involve a Mavexar attorney and his wife, who he appointed as the sole member of a Mavexar patent assertion entity.

How a Patent Assertion Entity is Born

Some of the Court's questions focused on exactly what Mavexar does, and confirmed that they operate basically as set out in the earlier hearings.

Here, from the lawyer's perspective, Mavexar attorneys reached out and said that Mavexar wanted to start several litigation campaigns, and asked whether the attorney was interested. They said that they would figure out what entity would actually assert the patents later.

In …

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Court Continues to Offer a Choice: Consent to Magistrate Judge or Be Referred to Visiting Judge

Andrew E. Russell, June 7, 2023
Visiting Judges Congestion

Doors
Jacob Culp, Unsplash

Over the last two weeks, Chief Judge Connolly issued orders in about 15 different groups of cases offering the choice between consenting to magistrate judges Burke (in some cases) or Fallon (in other cases), or being referred to a visiting judge:

ORAL ORDER: It is HEREBY ORDERED that on or before June 13, 2023, the parties shall either (1) submit to the Clerk of Court an executed Form AO 85 Notice, Consent, and Reference of a Civil Action to a Magistrate Judge, indicating their consent to have a United States Magistrate Judge conduct all proceedings in this case including trial, the entry of final judgment, and post-trial proceedings; or (2) file a joint letter indicating that …
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Danged If You Do, Danged If You Don't, Danged If You Sort-Of Do And Sort Of Don't

Nathan R. Hoeschen, June 6, 2023
Claim Construction

In almost every case I have as a defendant, there's a moment around claim construction when I'm just sure I've got the plaintiff dead to rights. Under one construction, there's no infringement—under the other, the patent's invalid. I've just gotta turn the crank on the vise until those conniving jerks pop.

I had a different picture here before but it was . . . pretty dark
I had a different picture here before but it was . . . pretty dark AI-Generated, displayed with permission

More often than not, however, this insoluble dilemma dissolves and I'm left cranking air.

It was thus with noticeable relish that I read Judge Bataillon's post-trial opinion in CR Bard Inc. v. AngioDynamics Inc. C.A. No. 1-15-218-JFB-SRF (D. Del. June 1, 2023)—where this spring was finally sprung.

The trap was—weirdly—in the term "suitable." The patents claimed a method for identifying a medical injection port as one of those "suitable" for high pressure applications such as CT scans (as well as apparatuses for doing the same). Apparently, the wrong sort of ports will explode if you use them for CT scans, so it's important for the doctor to know which kind you have.

The issue that came to the fore at trial was whether a "suitable" port was one that was ...

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Judge Andrews Cancels Markman, "Dismisses" the Parties' Briefing After Parties Seek Construction of 16 Claim Terms

Andrew E. Russell, June 5, 2023
10 Terms Claim Construction

"We didn't need that joint brief anyway ... (sob)" Jeff Kingma, Unsplash

Judge Andrews issued an interesting order on Friday. Based on the docket, it looks like the parties had fully completed the Markman process (disclosures, meet-and-confer, joint claim chart, and joint brief), and had briefed a total of 16 terms. Judge Andrews then canceled the Markman and "dismissed" the briefing:

ORAL ORDER: The parties have submitted a joint claim construction with the request that I construe at least 16 terms including, for example, comprising and patient. I think that if I postpone the Markman hearing, some of these disputes may fall away. Therefore, the Markman hearing scheduled for June 23 is cancelled. The Markman briefing is dismissed. The …
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