A Blog About Intellectual Property Litigation and the District of Delaware

The Honorable Sherry R. Fallon

Looks like Judge Fallon is trying out a new way of doing public hearings, with a YouTube mirror of a private Zoom teleconference at 10:00am ET on Tuesday 9/15:

ORAL ORDER- The Markman Hearing on 9/15/2020 will be a public hearing. The YouTube link for interested members of the public to observe the live Zoom session is https://www.youtube.com/watch?v=w-9WpLOvaLk&feature=youtu.be.

NexStep, Inc. v. Comcast Cable Communications, LLC, C.A. No. 19-1031-RGA-SRF (D. Del.).

The hearing is scheduled to last 3 hours and cover 6 terms.

To my knowledge, this is the first D. Del. hearing to post a public YouTube (rather than Zoom) link, at least in the IP space.

Honestly this sounds like a good way …

A Crack
Crack on white concrete surface, Brina Blum, Unsplash

Two opinions in the past week have come to differing conclusions as to whether the recitation of claim elements in a complaint is sufficient to state a plausible allegation of infringement.

Recitation of Claim Elements Helpful

In the first, Dynamic Data Technologies, LLC v. Brightcove Inc., No. 19-1190-CFC (D. Del. July 20, 2020), the Court denied a 12(b)(6) motion to dismiss an allegation of direct infringement, stating that it was sufficient to:

identif[y] products accused of infringing each of the asserted patents, identif[y] at least one claim of each asserted patent that the accused products infringe, and describe[] how those products infringe the identified claim.

To show …

Cell Tower
Cell Tower Ben Vaughn, Unsplash

In an R&R this week, Judge Fallon recommended granting a § 101 12(b)(6) motion to dismiss.

She rejected a proffered expert declaration regarding novelty of the invention, because "the court declines to consider matters outside the pleadings on a Rule 12 motion to dismiss."

She noted that "[t]he law is now well-established that patent eligibility is a threshold issue." So far she has recommended granting three § 101 motions to dismiss this year, out of four that she has addressed.

The § 101 issues addressed here were not unusual. The patent, originally held by LG and now by NPE Aegis 11 S.A., sets forth an algorithm for using random numbers to authenticate mobile …