I know which one I'd prefer.AI-Generated, displayed with permission
Because cases tend to go away rapidly over time, either through settlement or on the merits, attorneys tend to be less experienced with motions that come up later in the case, particularly things that come up after the judgment (other than post-trial motions), or even after appeal.
One example is a motion to alter or amend a judgment under FRCP 59(e). You just don't see them that often. So I thought it was worth talking about a Rule 59(e) motion that the Court addressed last week.
In The United States of America v. Gilead Sciences, Inc., C.A. No. 19-2103 (D. Del.), the plaintiff argued that the …
Judge Noreika issued an interesting order yesterday denying a § 101 motion to dismiss. According to the docket, shortly after the defendant filed its motion to dismiss—and contrary to what we found when we last looked at this—the Court directed the parties to meet-and-confer on a proposed schedule.
While the motion to dismiss was pending, the Court held a scheduling conference and issued a scheduling order. In it, the parties agreed to a real case narrowing proposal (without court intervention!), with plaintiff to initially cut back to 20 asserted claims per patent and 50 total by initial contentions, and then further cut back to 25 total just before final contentions.
We post often about how the Court handles Markman, and how much leeway the judges will give parties in seeking to construe terms (hint: it's usually10termsorless—and, these days, that's the total number, not the 10 terms per patent of old.).
This week, after parties in a case before Judge Hall sought construction of 18 terms, the Court vacated the Markman hearing and briefing schedule, and deferred all construction to the case dispositive motions stage (seemingly without additional pages):
ORAL ORDER: The parties have submitted a joint claim chart (D.I. 105 ) with 18 terms in dispute including, for example, "calculate" and "random." Defendants contend that 9 of the 18 disputed …
For attorneys who practice in D. Del., Judge Connolly's opinion yesterday in Pharmacyclics LLC v. Alvogen Pine Brook LLC, C.A. No. 19-434-CFC (D. Del. Apr. 30, 2024) is a real page turner, and well worth reading. If you want to avoid spoilers, go read it now! It's attached below, and it's only 11 pages.
Spoilers below:
It's rare for a judge to conclude that either side—let alone both—misled the Court and litigated vexatiously. But that's just what Judge Connolly found here, after the plaintiff moved for fees under 35 U.S.C. § 285.
In holding that the defendants litigated vexatiously, the Court offered two primary examples of their misdeeds. The first relates to unsupportable allegations …
There are a few words I dread seeing in an order. Some are obvious—"egregious," "sanctions," "nonsensical," "balding," etc. Others I only learned to fear after seeing them used in an opinion—"valiant," "sporting," "leakage" (don't ask).
In an opinion issued over the blog's break, Judge Williams gave new fuel to the pyre of woe that is my subconscious, and added a new word to my list: IRONY
Sadly, there do not appear to be any public domain pictures of Alanis Morissette, I assume she is a reader though and will send us a replacement image with her blessing shortly.Filip Mroz, Unsplash
Even without the irony, Chervon (HK) Ltd. v. One World Techs., Inc., C.A. No 19-1293-GBW, D.I. 394 (D. Del. Mar. 26, 2024) was an unusually interesting discovery dispute. In that case, the parties agreed to a case narrowing procedure wherein, after final contentions, the defendant was to elect no more than 3 grounds per asserted claim. When the defendant served that election, plaintiff complained that it included grounds that were not charted in the final contentions. In an apparent attempt to moot the issue, the defendant then served (without seeking leave) new contentions that did chart all of the elected grounds. The plaintiff then moved to strike the portions of the election not previously charted and the new contentions in their entirety.
Judge Williams granted that motion, striking most of the elected grounds and all of the new contentions, in particular noting that the defendant had not sought leave to serve them. Unfortunately this left the defendant without any elected grounds for several claims, and so they served a new election of asserted grounds including only grounds which were charted in the original, unstruck contentions (with a bit of a fudge factor). Shortly after service they moved for leave to submit the new contentions, and plaintiff cross-moved to strike them.
"They brought four motions to strike? We better bring 5!"AI-Generated, displayed with permission
There was an interesting order last week in Cleveland Medical Devices Inc. v. ResMed Inc., C.A. No. 22-794-JLH (D. Del.).
The parties filed a letter initiating a discovery dispute conference with the Court. These letters must include non-argumentative descriptions of each dispute the parties raise with the Court. Here, the letter listed a total of nine motions to strike expert reports, including five from the plaintiff and four from the defendant.
Typically the Court reviews these letters and sets a date for a conference and for briefing on each sides' issues. Here, however, the Court took issue with the extraordinary number of …
In some ways, the title says it all—but here is a bit more detail. In Throughtek Co., Ltx v. Reolink Innovation Inc., C.A. No. 23-218-GBW-SRF, D.I. 60 (D. Del. Apr. 19, 2024), the patent at issue claimed a system for identifying a networked device in order to establish a connection to it, by scanning a bar code or other image patter on the device.
The defendant moved to dismiss under § 101, arguing that the patent was directed to an abstract idea.
Judge Fallon issued an R&R holding that using the bar code for the connection information solved a problem necessarily rooted in computer technology, and was a specific improvement to computer …
Most of the judges in the District of Delaware have settled on page limits for summary judgment and Daubert motions in patent cases of 250 total pages: 50 pages opening, 50 pages answering, and 25 pages reply—per side.
The "per side" part is important, and it can have a significant impact on cases with multiple unrelated defendants or defendant groups.
The Court has usually resisted expanding these limits, and in many cases, has instead experimented with ways of reducing the burden on the Court. Judge Noreika, for example, has sometimesrequired parties to seek leave before filing summary judgment motions.
This week, Judge Bryson issued his findings of fact and conclusions of law following trial in Janssen Pharmaceuticals, Inc., v. Tolmar, Inc., C.A. No. 21-1784-WCB (D. Del. Feb. 26, 2024), and ANDA action. The opinion is long and thorough, and I thought the section on enablement was worth noting.
The patent at issue covers a "dosing regimen" for giving an anti-psychotic drug "to a psychiatric patient in need of treatment for psychotic disorder." According to the method, two loading doses of the drug are given, and then a maintenance dose is given between 21 and 38 days later (a "17-day window").
Defendant argued that the patent was not enabled, first because a person of …
In Exeltis USA, Inc. v. Lupin Ltd., C.A. No. 22-434-RGA-SRF (D. Del.), plaintiff asserted infringement of claims from six patents. Back in July, 2023, Judge Andrews ordered the plaintiff to narrow its case to seven asserted claims across all of the patents prior to trial, which is set for Monday, February 26, 2024.
On Tuesday of this week, the Court issued its ruling on several pre-trial claim construction disputes. Plaintiff lost some of the disputes and, apparently, decided that it needed to stipulate to non-infringement of that claim.
With one of its seven claims out of the case, and with less than a week to go before trial, Plaintiff sought leave to re-assert one …
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
