Last week, Judge Stark denied a motion to dismiss and strike a counterclaim and affirmative defense of inequitable conduct in Diebold Nixdorf, Inc. v. Hyosung TNS, Inc., C.A. No. 19-1695-LPS. His ruling serves as a reminder that pleading a defense of inequitable conduct is not the same as proving that defense.
DED
United States District Court for the District of Delaware
One common question for local counsel is "can we file something asking the Court to rule on our motion"? And the answer is usually something along the lines of "no," except in certain situations.
Last week we wrote about an example of the risks of an unwarranted request to expedite consideration of a motion.
This week I saw an example of a letter near the other end of the spectrum, in which a party asked gently urged the Court to consider a pending motion and got a good result.
A Letter That Worked
Plaintiff had moved for leave to amend their complaint to add two patents to a five-patent case, where all of the …
As we noted recently, Chief Judge Stark has a practice of holding "§ 101 days," in which he hears oral argument on a number of § 101 motions all at once, each from a different case. He typically issues decisions from the bench regarding each motion—which is always exciting—and follows up later with a written decision.
At first it seemed that § 101 days tended to be fatal for the patents involved, but more recent hearings have shown otherwise.
On Friday, Chief Judge Stark posted the schedule and public access information for his next § 101 day, set …
Last week, Judge Andrews granted a motion for reargument in a products liability diversity action, permitting further argument on summary judgment after the Court had previously ended the case by finding against plaintiff at summary judgment.
In its original opinion, nearly a year ago, the Court found that a federal statute that limits products liability for aircraft parts manufacturers blocked recovery here, and entered a judgment for defendant on all claims.
Plaintiff's motion for reargument asserted that, in addition to bringing actions against defendant as a "manufacturer," it had asserted claims based on the defendant's role as a "rebuilder and seller" of airline parts, and then detailed an argument based on the statutory language, …
Given that we've devoted a good deal of coverage to redaction requests in the last few months, I thought it might be useful to present a brief primer on the procedure for actually requesting redactions to a transcript in the District of Delaware.
This procedure cannot be found in either either the local rules or the Court's CM/ECF procedures. Instead, it comes from the Court's "Policy on the Electronic Availability of Transcripts of Court Proceedings."
Under this policy the process begins when the court reporter dockets the transcript, which looks like this:
After that, things get a bit murky.
So I Have 21 Days to Request Redactions?
First off, that 21-day deadline ("Redaction Request Due 3/22") is actually …
It's a tough scenario: you think your opponent might have assigned away their patent rights, but you aren't exactly sure. And the only way you could know for sure is with information you don't have.
Most of the time in D. Del., disputes like this are addressed in a hearing transcript or an oral order. They don't make headlines, and they never hit Lexis or Westlaw, but they often provide helpful guidance for the future.
Yesterday, Judge Burke issued an oral order denying a request to compel a plaintiff to turn over its litigation funding documents. The defendants knew that the plaintiff had third-party litigation funding (and suspected that there might have been some assignment of …
Yesterday, Judge Noreika denied an early Section 101 challenge to two patents-in-suit, in light of a factual dispute regarding unconventionality of certain aspects of the claimed invention.
Although plaintiff managed to survive the § 101 motion, it failed to meet the relatively un-demanding standard for pleading direct infringement – a test that would have been satisfied if the plaintiff had simply "identified the . . . accused products and alleged that the accused products met 'each and every element of at least one claim' of the asserted patents, either literally or equivalently." ...
As we previously mentioned, the Court has suspended all non-emergency jury trials until April 5, 2021, and has stated that, at least initially, it will permit only one jury trial to proceed at a time.
The Court tried repeatedly to re-start jury trials in November and continuing through early February—and got so far as jury selection—but ultimately all of the cases scheduled for trial either resolved or were delayed, mostly due to coronavirus concerns among the parties. At this point, the Court has recognized that, once jury trials restart, the trial calendar is looking extremely congested.
The Court Has Not Canceled All April Jury Trials (Yet)
Currently, there are two …
The practice in Delaware has long been that calls to chambers are generally only appropriate in a relatively narrow range of circumstances, and "please decide my motion immediately" is not one of them.
It looks like one plaintiff's counsel may have learned this this hard way on Wednesday when they filed a TRO seeking to enforce an arbitration clause in an employment agreement, and then immediately called the court to urge that it receive immediate attention. Here is the Court's response, issued the same day as …
This week brought to light yet another unexpected side effect of COVID-19 -- it's now harder to win a motion to bifurcate.
This interesting tidbit came to light in Judge Hall's opinion in Evertz Microsystems Ltd. v. Lawo Inc., C.A. No. 19-302, D.I. 259 (D. Del. Feb. 23, 2021). The defendant there moved to bifurcate the infringement and damages cases into separate trials near the close of fact discovery. In denying the motion, Judge Hall noted that the prejudice to the plaintiff, and strain on the Court, of holding two separate trials was greater than it would normally be because it was unlikely the second trial could be scheduled for years:
As the parties both know, this Court currently has an extremely congested docket. It would be difficult to schedule an additional trial in this action; thus, Evertz would likely have to wait additional years to have full resolution of its claims.
Id. at 3.
Its also worth noting that Judge Hall called out the "fairly litigious" nature of the case, with the parties "raising numerous discovery disputes before the Court" leading to concerns that "bifurcating and staying the issue of damages will result in (1) duplicate discovery requests and disputes as those already resolved and (2) new disputes over what is appropriately part of the liability phase versus the damages phase" that would further tax the Court." ...
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