In patent infringement cases, plaintiffs' claim construction strategy sometimes seems to boil down to "Plain meaning! Construe it later! Everything is in!", while defendants often go for "No plain meaning! Construe it now! Our thing is out!".
Note that, for defendants, it's not necessarily that everything is out of the claim. It's often that there is one specific thing from the specification that is required, and that just happens to be the one thing the defendant's product doesn't have or do.
This strategy doesn't have a great success rate for defendants, but often I feel like the attitude is that "well it's worth a shot." I'm not sure that's always true, because a really bad argument …
When expert reports go back and forth in a patent case, it's not uncommon to see complaints from the patentee's expert along the lines of "I understand that the opposing party did not produce information regarding x, so I will instead base my opinions y."
In other words, the expert wants to keep the door open to explain to the jury that he or she would have done a particular analysis if only the other side had given them the information they needed. But, obviously, the other side may object to that testimony.
Judge Connolly addressed a situation like yesterday, and held that the expert cannot just testify to the jury about the other sides alleged …
An embodiment of the claimed "weight-shift controlled personal hydrofoil watercraft"U.S. Patent No. 9,359,044
We don't usually write about claim construction opinions, because they tend to be fact-specific and tough to generalize to other cases.
But there were a few interesting points in a claim construction opinion issued by Judge Andrews on Friday, and I thought it was worth outlining them here:
While the judges are typically somewhat adverse to extrinsic evidence, Judge Andrews askedthe parties to submit letters outlining "textbook[]" style definitions of the a term, "stability," and said that he found the letters helpful. He adopted the construction that "capture[d] the concept of static stability" as set forth in the textbook definitions.
It's easy to fall into the trap of separating rules into "technical" and "substantive" and on that basis to choose which must be followed and which can be safely ignored. Judge Noreika neatly illustrated how foolhardy this practice can be last week, when she issued a brief, two-sentence order denying a summary judgment motion:
WHEREAS, pursuant to the 47 Scheduling Order, a separate concise statement of facts shall be filed with any summary judgment motion; and WHEREAS, Plaintiff did not file such statement with its 194 Motion for Summary Judgment. THEREFORE, IT IS HEREBY ORDERED that the motion is DENIED for failure to comply with this Court's procedures set forth in the Scheduling Order
Just a heads up, since this has to be one of the more common things that counsel do in cases—this week, Judge Connolly denied a stipulation extending the answer deadline as untimely and lacking a reason:
ORAL ORDER: The parties' stipulation (D.I. 16) being untimely and offering no justification for an extension, it is HEREBY DENIED. Defendant has until June 23, 2022 to answer, move, or otherwise respond to the complaint. ORDERED by Judge Colm F. Connolly on 6/21/22. (ntl) (Entered: 06/21/2022)
Wikeshire IP LLC v. TransCore, LP, C.A. No. 22-445-VAC (D. Del.).
It's not clear from the docket why it was untimely. It looks like the answer deadline was originally 4/28/2022, then it was extended by stip to 5/28, then 6/14. Then, on 6/14 (the due date), the parties filed another stipulation extending the answer deadline to 6/28.
So it looks like the Court rejected a stipulation filed on 6/14 to extend a 6/14 due date. It may be that the parties filed after the 6pm filing deadline. Or, it may be that the Court is taking the view that the stipulation must be filed early enough for the Court to "so order" it prior to the deadline—but I haven't seen that in other cases.
Either way, it's probably safest to list a justification for your stip extending the answer deadline, and to file early going forward! Of course, this can be tricky in high-volume NPE cases, where plaintiff's counsel may be unresponsive until the parties are right up against a deadline.
Since the Court suspended its mediation program, parties have noticed that the District of Delaware lacks an established pool of local mediators who are available to mediate patent cases.
As I mentioned a while back, I wanted to put together a list to help match attorneys and clients with mediators who have District of Delaware patent-case experience. I've now heard from multiple D. Del. mediators and attorneys about who people are using, and I put together this list.
Spoiler alert: It's a short list. My primary criteria were: local or nearby, active, and experienced in patent cases or patent case mediations. Even so, there are just not a ton of names, and people largely …
The redacted filings (D.I. 453 , 454 , and 458 ) are REJECTED because parts of them are redacted in their entirety. Absent a compelling reason, supported by a statement under oath by a party, redactions in their entirety are impermissible; redactions must be done so as to redact the least possible amount of the materials submitted. Failure to make a good faith attempt at such redactions may result in sanctions, the most common of which would be simply unsealing the entire filing. Redacting in its entirety a document that contains publicly available materials is prima facie evidence of bad faith. Revised redacted filings are DUE within five business days.
On Friday, former District of Delaware Chief Judge Stark authored what I believe is his first Federal Circuit opinion as a sitting Federal Circuit judge: In re A. Zeta S.R.L., No. 2022-1178, 2022 U.S. App. LEXIS 15992, at *1 (Fed. Cir. June 10, 2022) (affirming a PTAB trademark decision).
Note—before you e-mail to say I'm wrong!—Judge Stark has sat by designation at the Federal Circuit many times before, and has authored at least one Federal Circuit opinion as a district judge. See, e.g., Mortg. Grader, Inc. v. First Choice Loan Servs., 811 F.3d 1314 (Fed. Cir. 2016). But I think this is his first written opinion since his nomination.
Interestingly, ever since moving to the Federal Circuit, …
Magistrate Judge Fallon addressed a discovery dispute last week, and denied a motion to compel a response to interrogatories regarding efforts to preserve documents in anticipation of litigation:
ORAL ORDER: Having reviewed the parties' discovery dispute letter submissions . . . , IT IS HEREBY ORDERED that: . . . (3) Defendant's request to compel Plaintiff to supplement its responses to Interrogatory Nos. 16-17 and Request for Production Nos. 104-05 is DENIED. Discovery regarding efforts undertaken by Plaintiff to preserve documents in anticipation of litigation is barred under the Court's Default Standard for Discovery of ESI and Fed. R. Civ. P. 26(b)(3)(A) and (B), particularly in the absence of a credible …
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