A Blog About Intellectual Property Litigation and the District of Delaware


WCB
The Honorable William C. Bryson

No damages? No problem.

Andrew E. Russell, June 29, 2022
Damages Expert Witness

Dollar Bills
Sharon McCutcheon, Unsplash

Judge Bryson resolved a large pile of motions in limine this month in IOEngine, LLC v. Paypal Holdings, Inc., C.A. No. 18-452-WCB (D. Del. June 15, 2022). What's a large pile, you say? About nineteen motions in limine total if I'm counting correctly.

The opinion hits a number of the old stand-by MILs, including that the accused infringer cannot call the patentee names like "patent troll" (we've discussed that before), that PTAB and IPR proceedings do not come in and the parties cannot talk about inequitable conduct (common results), and that general evidence about the parties' size/net worth is precluded (also not uncommon).

There were a number of interesting motions, though, …

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"Remember That Time a Plaintiff Tried to Serve 23,668 RFAs?"

Andrew E. Russell, May 10, 2022
RFAs Discovery Dispute

"Our RFAs will blot out the sun!" Possessed Photography, Unsplash

I have a feeling that, when the question of "how many RFAs can we serve if there is no limit" comes up going forward, we are all going to remember this case.

In FG SRC LLC v. Xilinx, Inc., C.A. No. 20-601-WCB (D. Del.), plaintiff apparently served 23,688 RFAs on the defendant, each one requesting an admission that a document produced by the defendant was authentic.

You may be thinking "Was this all in one set of RFAs?? Did they type this all out?!?" and it appears that the answer is "yes." According to the Court, the plaintiff served a "3,604-page document entitled 'First Requests for Admission of Authenticity.'" That's 9.1 RFAs per page.

I have to imagine they used a computer script or something similar to draft these. I hope they didn't condemn a poor associate or paralegal to their office for a week to type these out.

In any case, the defendant—shockingly!—objected that having to respond to 23,668 individual RFAs was "abusive, unreasonable, and oppressive." Judge Bryson ...

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Wasted Effort? Court Denies Spoliation Sanctions After Prototype Goes Missing from Inventor's Home

Andrew E. Russell, May 9, 2022
Spoliation Sanctions

Fire Department
Mor Shani, Unsplash

In IOEngine v. Paypal Holdings, Inc., C.A. No. 18-452-WCB (D. Del.), the inventor kept a box of 33 prototypes for his invention in his basement "laboratory."

One of the prototypes—the "MediKey device"—had been the subject of intense dispute in a previous case on his patent. It had been analyzed by experts for both sides, who disputed its functionality and whether he had accurately described it to the PTO (as part of an inequitable conduct claim).

After a series of electrical incidents and fires in his laboratory, involving visits from various electricians and fire control personnel, the inventor discovered that the prototypes were in a new box and that the MediKey device was missing. …

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Judge Bryson Issues 22-Page Opinion in Two Days, Stays Case Pending Re-Exam Just 11 Weeks Before Trial

Andrew E. Russell, Sept. 18, 2020
Re-exam Stay

Judge Bryon issued an interesting stay opinion last Friday.

The plaintiff had initially asserted six patents. Of those, four were dismissed under § 101, and the claims as to one of the remaining patents were severed and stayed pending IPR.

The case was set to go to trial on the last remaining patent on November 30, just over 11 weeks from the date of the order. But, last month, the PTO granted a request for ex parte reexamination of the sole asserted claim of that patent.

Shortly after that, Judge Bryson issued his opinion granting a motion to stay pending re-exam. A couple of interesting points:

  • What a turnaround! Defendant first indicated it intended to request a stay …
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Three Things Docket Navigator Didn't Mention About Judge Bryson's Recent Discovery Opinion

Andrew E. Russell, July 28, 2020
Errata 30(b)(6)

This morning, Docket Navigator covered Judge Bryson's D. Del. discovery opinion that was made public this week, focusing on his denial of a motion to strike errata to a 30(b)(6) deposition transcript.

But there are (at least) three other interesting points about the errata in the opinion:

  • COVID issues make deposition errata more necessary:
Mr. Rothrock had to prepare for his deposition under difficult circumstances, including having to consult remotely with others in the company. Mr. Rothrock understandably could have made a mistake during his deposition in light of the numerous topics and challenging circumstances in which he was forced to prepare. Given those circumstances, I will not disregard Mr. Rothrock’s errata.
  • The Court noted that, as usual, …
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