Artist's interpretation of the Sword of Algorithms piercing the Shield of § 230.AI-Generated, displayed with permission
There has been a lot of political talk lately about § 230 of the Communications Decency Act, 47 U.S.C. § 230, which provides immunity for certain kinds of claims related to user-generated content on social media. It's a hot-button, IP-adjacent topic.
Judge Williams today addressed the question of whether § 230 operates to shield Meta / Facebook from the effects of its algorithms. The case is between former Governer Mike Huckabee and Meta, and involves privacy, publicity, false light, and unjust enrichment claims related to ads Facebook hosted that suggested Governor Huckabee was associated with a CBD product:
Its not often I got to throw out a reference to A Critique of Pure Reason, so this one goes out to whatever liberal arts majors find themselves reading the blog for some reason.
I spent a good deal of time trying to find an image for this, and I'm now convinced that no artist actually saw him alive, as the many depictions look nothing alike. I have chosen the one with the best cheekbones as I assume he would have wanted.Friedrich Rosmäsler, 1822, from a painting by Todd Schorr
As the aforementioned liberal artists among you may have gathered, today's post deals with the question of representative claims in the 101 analysis. In particular, to what extent can the few exemplary claims listed in the complaint stand in for the larger, inchoate, collection of claims that may ultimately be asserted when deciding a motion to dismiss.
In Redwood Techs., LLC v. Netgear Inc., C.A. No. 22-1272-GBW, D.I. 27 (Oct. 28, 2024), Judge Williams drew the hardest (most Kantian?) line on the issue that I have seen in recent years.
The operative complaint followed the common tactic of accusing the defendant's products of accusing "one or more claims" of several patents and then describing the alleged infringement of one claim per patent "for example." Id., D.I. 14 (Amended complaint).
Defendant moved to dismiss, discussing only those representative claims. Plaintiff opposed, arguing that the defendant "did not meet its burden of demonstrating representativeness," and noting that it "will be asserting additional claims of infringement." Id., D.I. 21 at 1.
Judge Williams was unpersuaded by this potential assertion of as-yet-unidentified claims and treated each of the claims referenced in the patent as representative:
The Court rejects Redwood's attempt to insert new patent claims through its opposition brief, as Redwood put forward only a skeletal argument and "did not file a motion for leave to amend [its] [Operative] Complaint." Redwood "may not amend [its] claims via [its] opposition to the motion[] to dismiss." "[T]he Court will consider only the claim[s] asserted in [Redwood's] [Operative] Complaint."
Thus, as Redwood fails to specifically identify a single, disputed claim left unaddressed by Netgear's motion, there are no "disputes over representativeness" for this Court to resolve.
Id., D.I. 21 at 5 (internal citations omitted).
Given the "skeletal" (spooky!) nature of the Redwood's briefing on this issue, it's not clear if the representativeness argument was doomed by the failure to specifically seek leave to amend, or if it could have passed muster with some additional detail. As an example, I sometimes see briefs that actually say something like "claim 39, which we definitely will be asserting, is totally different for the purposes of this analysis because it also claims a novel perpetual motion machine."
The patentee's TRO attempt worked out about as well as this (unmanned) rocket's attempt to reach orbit.Tim Mossholder, Unsplash
Ouch. In Nivagen Pharmaceuticals, Inc. v. Amneal Pharmaceuticals Inc., C.A. No. 24-846-GBW (D. Del.), the patentee plaintiff filed suit to stop a competitor from launching a drug that it says would infringe its patents, after the competitor received FDA approval.
(Because this was not an ANDA, there was no automatic stay.)
The plaintiff filed a TRO motion on August 13, shortly after its complaint. For at least two of the …
One of these guys forgot to come armed.AI-Generated, displayed with permission
Attorneys spend a lot of time threatening fee awards when dealing with an NPE, even though they can be challenging to get. So I always think it's interesting to see what kinds of behavior will support a fee award.
Last week, Judge Williams issued a memorandum order granting fees in Extremity Medical, LLC v. Nextremity Solutions, LLC, C.A. No. 22-239-GBW (D. Del.). The Court listed three bases for its fee award. First, the patentee made zero showing of any pre-suit investigation of invalidity:
[T]here is no dispute that Defendants notified Plaintiff of [prior art references] Marcus and Chandran several years prior to the date …
"Yes, we need to know their financials for our permanent injunction. It totally won't help us in settlement negotiations or anything."AI-Generated, displayed with permission
This is another one where I saw a potentially useful order about an issue that comes up from time to time, and thought "I should write a blog post about that, so I can find it later." I hope this will be helpful for others as well.
Last week in Nexus Pharmaceuticals, Inc. v. Exela Pharma Sciences, LLC, C.A. No. 22-1233-GBW (D. Del.), the Court addressed the question of whether a plaintiff in a "competitor-competitor" patent case could compel production of the defendant's corporate-level financials. It held that no, it could not, …
The Court often limits parties to a total of 10 terms for construction. But sometimes it seems like, under O2 Micro, a party can't really waive a claim construction position. After all, if there is a dispute, the Court will have to construe the term one way or another, right? It can't go to the jury like that?
We got a clear answer to that question on Friday when Judge Williams held that both parties had waived their right to offer certain constructions, which they offered just three days before trial.
The parties asked to construe a total of five terms. The Court held that it was within its discretion to …
When the Court says "unless they open the door," typically you'd want to stay far away from that door.AI-Generated, displayed with permission
There is a lot of precedent in D. Del. regarding when the parties can and can't present evidence from post-grant patent proceedings such as IPRs. Most often, the Court holds that such evidence is inadmissible or constrained, to prevent it from unduly influencing the jury. "We already won this once" can be a powerful argument.
Last week, Judge Williams issued an opinion taking the usual position as to most evidence. But the Court also held that simply asserting a prior art reference that was raised in post-grant proceedings opens the door for the patentee to introduce …
Money—Exactly the thing that this accused infringer may not actually wind up collectingGiorgio Trovato, Unsplash
We're back! During our brief intermission, the Court issued an exceptional case finding in Wireless Discovery LLC v. eHarmony, Inc., C.A. No. 22-480-GBW (D. Del.), and awarded fees.
I always like reading these opinions both (1) as a guide on what not to do and (2) to figure out how to better threaten NPEs with the risk of fee awards. I'm not sure this one is going to be particularly helpful in those regards, because there were some exceptional facts.
First, the patentee filed a patent that asserted previously invalidated claims. Worse, after the accused infringer called them …
A short post today to flag another interesting aspect of Judge Williams' opinion in Upsher-Smith Laboratories, LLC v. Zydus Pharmaceuticals (USA) Inc., C.A. No. 21-1132-GBW (D. Del. July 18, 2024) which Andrew wrote about last week.
The Plaintiff there moved in limine to preclude the defendants' expert from testifying under rule 403 (and most other rules of evidence). The only problem was that this was a bench trial, where 403 is something of an awkward fit, as noted by Judge Williams in denying the motion:
While Rule 403 permits the Court to exclude relevant evidence if its relevance is outweighed by the potential for "unfair prejudice, confusing the …
An AI rendering of an object that is both a sword and a shield. I can't argue with it.AI-Generated, displayed with permission
There are certain exclusion arguments that stand out as tending to work more often than others—things like a Rule 702 motion for failure to apportion, a motion to exclude a Doctrine of Equivalents argument offered for the first time in a reply expert report, or a motion to exclude an exhibit not on the exhibit list. It's not that they win every single time, but parties often seem to have an uphill battle against them.
Another argument on that list is "using privilege as a sword and a shield." It's not uncommon for a party to get …
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