Wow, it's hard to imagine how a party could have a fact disclosure that is later than this, other than maybe trying to offer new facts for the first time on appeal.
In Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, C.A. No. 17-1390-RGA (D. Del.), the parties had a jury trial in December 2021. The jury found infringement, no invalidity, willfulness, and damages of over $12 million against two defendants. The Court later entered a (mostly undisputed) permanent injunction.
The Court addressed the defendant's § 101 claims by motion and briefing after the …
Back in February, Judge Andrews granted a motion to dismiss a patent with claims directed to the abstract ideas of "the recording, storing, delivering, and deleting of media content on a mobile device," and "remote control" of a mobile device. Clear Doc, Inc. v. RiversideFM, Inc., C.A. No. 21-1422-RGA, 2022 U.S. Dist. LEXIS 31168, at *15 (D. Del. Feb. 22, 2022).
He dismissed the claims on § 101 grounds, but granted leave to amend on the theory that the patentee could show an inventive concept:
Riverside's motion to dismiss is granted. Dismissal is without prejudice. OpenReel has requested leave to amend. (D.I. 46 at 19 n.1). I will grant that request, as it is possible OpenReel could successfully amend its complaint.
Clear Doc, Inc. v. RiversideFM, Inc., Civil Action No. 21-1422-RGA, 2022 U.S. Dist. LEXIS 31168, at *15 (D. Del. Feb. 22, 2022)
Id. at 19.
Taking the Court up on its offer, plaintiff amended their complaint to allege that certain feature constituted "inventive functions" under Alice—but the Court wasn't buying it:
The FAC has not alleged facts supporting the conclusion that the claims contain an unconventional technological solution as opposed to an abstract idea ...
We've all spotted a waiver in the other side's papers—some issue that would have been raised earlier or more clearly by a noble opponent in a just world. Normally the issue doesn't merit more than a finger-shaking footnote, but its galling nonetheless.
Forget it Jake, it's Delaware.
An Issue Ignored
This brings us to the convoluted saga of San Rocco Therapeutics, LLC v. Bluebird Bio, Inc. The plaintiff had a license to the patents-in-suit and the parties disputed whether it was sufficient to grant standing. Because that license had an arbitration provision, the defendant moved to stay the case and compel arbitration.
In their opening brief, however, Defendants did not address the threshold …
In AstraZeneca AB v. Zydus Pharmaceuticals (USA) Inc., C.A. No. 18-664-RGA (D. Del.), after a bench trial before Judge Andrews, plaintiff had filed proposed post-trial findings of fact that included a definition for a person of skill in the art for the asserted patents.
Judge Andrews then issued a trial opinion finding the asserted claims infringed and not invalid—i.e., a ruling in plaintiff's favor. He adopted plaintiff's proposed definition of a person of skill in the art.
Shortly after the opinion issued, however, plaintiff realized it made a mistake in its proposed findings of fact. It had omitted part of its definition of a person …
Judge Andrews issued an order today for a forthcoming Markman hearing, set for 9:00 am tomorrow, directing plaintiff to propose a construction for one of its "plain meaning" terms by 8:00 pm this evening:
ORAL ORDER: The time for argument at the Markman hearing is reduced to thirty minutes per side. . . . As to disputed term D, the Court thinks construction is …
I guarantee that's the cleanest this car seat will ever look.Erik Mclean, Unsplash
Judge Andrews issued an opinion earlier this month regarding a permanent injunction in Wonderland Switzerland AG v. Evenflo Company, Inc., C.A. No. 18-1990-RGA (D. Del. July 5, 2022). Plaintiff in that case prevailed at a four-day bench trial in 2021, with a damages award of $343,680 (they sought $845,528, according to the draft PTO).
Plaintiff now moved for a preliminary injunction. The Court had held after trial, as part of its Georgia Pacific reasonable royalty analysis, that the parties were "direct competitors":
First, I previously held that "the parties are direct competitors in the industry of the patented invention." . . . Specifically, the parties do not dispute that Graco and Defendant directly compete in the car seat market. (See D.I. 195 at 2 (Defendant agreeing, " There is no dispute that Evenflo directly competes with Graco, Wonderland's customer in a large market for all-in-one car seats.")). Additionally, Plaintiff is the exclusive manufacturer of car seats sold by Graco in the United States. . . . Thus, if Graco loses a sale of a car seat, Plaintiff also loses a sale.
Judge Andrews rejected an apparent attempt to backtrack and argue that the parties were not competitors, in part because ...
Judge Andrews issued an interesting opinion today denying a requested $9 million attorneys' fee award in Acceleration Bay LLC v. Take-Two Interactive Software, C.A. No. 16-455-RGA (D. Del.).
There were a number of facts in defendant's favor, but not quite enough to get over the bar for fees under § 285. The one that most caught my eye was that the Court had previously expressed concerns about counsel's candor—a rare thing for the Court in the District of Delaware to do:
Defendants argue that the impropriety of Plaintiff's litigation conduct-including the lack of candor, forcing relitigation of lost issues, and the pattern of inappropriate conduct in previous cases-further proves that this case …
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.
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.
Judge Andrews on Friday denied a fairly typical stipulation extending time for the briefing on a motion to dismiss:
ORAL ORDER: There is a pending motion of a routine nature. Each side is represented by multiple attorneys, at least some of whom on both sides are known to me to be more than competent. Summer schedules and other professional obligations are not a reason to add more than two months to the briefing schedule for this motion. The stipulation (D.I. 15 ) is DENIED. Ordered by Judge Richard G. Andrews on 6/3/2022. (nms) (Entered: 06/03/2022)
Robocast, Inc. v. Netflix, Inc., C.A. No. 22-305-RGA, D.I. 16 (D. Del. June 3, 2022).
I've noticed two similar orders lately as well, denying early-case extensions or stays and citing Federal Rule of Civil Procedure 16(b)(2), both from Chief Magistrate Judge Thynge. First, with regard to a stipulation to extend time to submit a scheduling order:
ORAL ORDER re 18 STIPULATION TO EXTEND TIME to submit a scheduling order to 6/1/2022 filed by IP Power Holdings Limited: . . . By the time of the Rule 16 conference scheduled for 6/6/2022, this matter will have been pending for ...
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