A Blog About Intellectual Property Litigation and the District of Delaware


RGA
The Honorable Richard G. Andrews

Judge Andrews Orders Party to Identify Lawyer Responsible for Frivolous Motion, So They Can Explain Why They Thought the Motion was Justified

Andrew E. Russell, Dec. 19, 2022
Sealing Sanctions

Google apparently indexed its allegedly confidential information on its own search engine.
Google apparently indexed its allegedly confidential information on its own search engine. Pawel Czerwinski, Unsplash

Whew, this is another one that falls in the "I'm glad I'm not involved in that" bucket (some previous entries here and here).

On Friday, Judge Andrews rejected a frivolous motion to seal, after he found some of the supposedly-sensitive information as a top result on Google:

This is about as frivolous a motion to seal as I have seen. Defendants submitted a declaration of Phil Harnish in support of their motion to transfer the case to the Northern District of California. The motion is based on the purported need to avoid disclosing “sensitive personal information about employees that, if revealed, would …
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Party Scores Hole in One, Invalidates Asserted Claims of Patent at SJ

Andrew E. Russell, Nov. 23, 2022
MSJ Summary Judgment

The Court has said in the past that "winning summary judgment in a patent case is like hitting a hole in one." Well, yesterday DePuy Synthes scored a hole in one, invalidating all asserted claims of one patent on SJ in RSB Spine, LLC v. DePuy Synthes Sales, Inc., C.A. No. 19-1515-RGA (D. Del. Nov. 22, 2022).

How Did They Do It?

Basically, they won it at claim construction, but couldn't end the case until summary judgment.

The patent at issue, U.S. Patent No. 6,984,234, covers a "base plate" that a surgeon can screw into two bones in a person's spinal cord to stabilize them.

The base plate screws into the bones (blue, below), and a …

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Judge Andrews Grants Motions in Limine Regarding Prior Proceedings and Total Revenues—Here's Why These Are Helpful Motions

Andrew E. Russell, Nov. 16, 2022
Trial Practice Trial Procedure

"Sure our damages figure sounds big, but look how big this other number is!" AI-Generated, displayed with permission

This week, Judge Andrews issued an order on the six motions in limine that the parties filed in Sprint Communications Company, L.P. v. Mediacom Communications Corp., C.A. No. 17-1736-RGA (D. Del. Nov. 14, 2022).

The order is short and to the point, and doesn't identify what the MILs relate to. But if the docket shows that there are at least two MILs here worth mentioning, if only because they come up so often.

Prior Proceedings

The defendant first moved to exclude the outcomes of multiple prior cases, as well as pending cases against co-defendants. Plaintiff responded that the prior …

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A Handy Transcript

Andrew E. Russell, Nov. 9, 2022
Contentions KB

Bookmarks
Chiara F, Unsplash

I thought I'd share an old transcript that has come in handy a number of times since it issued back in 2013, where Judge Andrews made a helpful ruling about how and when patentees must respond to conception date interrogatories—an issue that comes up frequently.

In Vehicle Interface Techs., LLC v. Jaguar Land Rover N. Am., LLC, C.A. No. 12-1285-RGA (D. Del.), the defendant filed a discovery dispute to compel a full response to an interrogatory asking for the date of conception and reduction to practice.

The patentee had responded, but the answer was not very helpful. According to the discovery dispute letter:

[The patentee] stated that the sole inventor . . …
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"As Pointless as a Motion Can Be"

Andrew E. Russell, Oct. 12, 2022
DOE Motion for Reconsideration

Sad Attorney
AI-Generated, displayed with permission

Here's some interesting language from Judge Andrews yesterday, in an oral order:

In a motion (No. 15-611, D.I. 532) that is as pointless as a motion can be, Plaintiff asks for reconsideration/clarification of an issue that was not decided. Defendants add to the frivolity by writing five pages in opposition (No. 15-611, D.I. 542), while agreeing that I did not decide the issue. Both sides are surely right. Thus, Plaintiffs motion is DISMISSED as moot.

Plaintiff had moved for reconsideration of Judge Andrews' order adopting a special master order that struck a new DOE theory. According to Judge Andrews' original order:

I think TQ . . . advanced a distinctly new DOE theory and …
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Redact, Don't Do It

Nathan R. Hoeschen, Sept. 27, 2022
Redactions

Why did they play this song at my prom? I am not that old, and it is surprisingly hard to dance to
Honey Fangs, Unsplash

For the past year or so, we've been tracking Judge Andrews' new practice of rejecting filings that redact exhibits in their entirety with a docket entry like the below:

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 …
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A Master's Order, A Question Answered, A Chicken Unchained

Nathan R. Hoeschen, Sept. 13, 2022
Pennypack Special Master

So Noble
So Noble Navi, Unsplash

The law can always surprise you. Sometimes this is a bad thing. For instance, I was surprised and saddened to learn that, in the city of Wilmington, you can only have a chicken if it is an emotional support animal who lives at least half of the year in your home. Unfortunately, Learned Claw is not yet house-trained.

Sometimes, though its a good surprise. The sort that you can wring a blog post out of if you can pad it with a personal anecdote (*coughs*).

For instance, I was surprised to learn that there was a dispute about the standard for reviewing one of the most common disputes in all of Delaware -- whether to strike contentions under the Pennypack factors.

The specific context at issue in the painfully long-running case of TQ Delta LLC v. Comcast Cable Communications LLC, was an objection to a Special Master's Order. The underlying dispute was your usual Pennypack issue, with one party complaining that the other had disclosed a new DOE theory too late in the game, and the other arguing that the theory was not really new at all. The Special Master went through all of the usual factors and ultimately struck ...

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Too Far: Judge Andrews Denies Post-Trial § 101 Motion on System for Blending Gasoline and Butane

Andrew E. Russell, Aug. 31, 2022
Prior Art § 101

Tanks
Patrick Federi, Unsplash

Judge Andrews resolved what seems like a tough § 101 motion today, and I thought the claims of the patent (and the outcome) were interesting.

The patent involves a system for mixing gasoline and butane. The patent specification said that these fuels were previously mixed in multiple ways, including in a laborious process involving manually adding butane to a tank of gasoline and then stirring the two together.

There were a number of claims at issue, but the one that stands out most to me simply claims the whole system and what it does, without claiming how the components work:

A system for blending gasoline and butane at a tank farm comprising:
a) a tank of …
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Fee Fi Fo Fun

Nathan R. Hoeschen, Aug. 30, 2022
Fees

Ashley Jurius, Unsplash

Typically, parties on the same side of the V like to put up a united front. Whatever things might look like behind the scenes, in public, they make a big show of laughing loudly at each other's jokes and slapping one another on the back with more than necessary force.

Apparently, that all goes out the window when fees are on the line.

Earlier this year, Judge Andrews awarded the defendants attorneys' fees in M2M Solutions LLC v. Sierra Wireless America, Inc, C.A. No. 14-1102-RGA (D. Del. Aug 16, 2022) (Clarifying Order), largely because the plaintiffs had pressed an infringement theory contrary to the Court's claim construction.

As it happened, there were two unrelated …

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Judge Andrews Puts Accused Infringer on Notice that "If It Causes a Mistrial by Poor Preparation or Poor Judgment in Questioning [Certain Witnesses], It Will, at a Minimum, Have to Pay [the Patentee's] Attorney Fees"

Andrew E. Russell, Aug. 22, 2022
Expert Witness Trial

Be Careful
Josh Frenette, Unsplash

In a pair of orders last week in Shopify Inc. v. Express Mobile, Inc., C.A. No. 19-439-RGA (D. Del.), Judge Andrews set out guidelines for the trial testimony of two fact witnesses, who will offer testimony at trial regarding some prior art references (among other things).

The procedural background here is surprising. The patentee moved in limine to exclude the testimony of these witnesses, and the Court addressed the motion at a pre-trial status conference. There, the Court directed that the parties depose the witnesses and that the accused infringer submit proffers of the testimony that will be offered at trial.

That a Lot of Briefing

The parties then filed a stipulation setting …

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