The District of Delaware generally permits parties to file things under seal without a motion to seal, and requires parties to file a redacted version within 7 days. Usually, the Court permits parties to handle redactions without judicial intervention (although notalways).
As we've written aboutrepeatedly, Judge Andrews regularly rejects redacted versions of filings that take the easy way out and simply redact entire exhibits rather than doing line-by-line redactions.
While we were out last month, the Court issued a similar order in a case before Judge Hall:
DEFICIENCY NOTICE by the Court issued re 238 Redacted Document. The redacted filing (D.I. 238) is REJECTED because parts of it are redacted in its …
Hello again my dear readers. I would like to apologize for my long absence, I have missed you almost as much as you have missed us. I would also like to apologize for Andrew's post yesterday, "we're back" which failed to make a joke about the disturbing 90's animated feature "We're Back! A Dinosaur's Story" in which a one-eyed carnival barker with mind control powers is eaten by crows. It shan't happen again.
With that out of the way, I wanted to call attention to a recent opinion from Judge Williams on a contract dispute between various NPE entities. We don't get to see these much as they're usually heavily redacted, but as my father used to say, "you can't redact what's in your heart." So too, it's tough to redact a court opinion on a contract you're suing over so we get a lot of detail here.
(Eds. note - my dad does not actually say that)
The agreement in CBV, Inc. v. ChanBond, LLC, C.A. No. 21-1456-GBW (D. Del. Mar. 13, 2024) (Mem. Op.) involved a bewildering array of related parties with silly names exchanging ludicrous sums. CBV had a portfolio of patents "related to the delivery of high-speed date over cable systems." Id. at 3. Apparently they weren't doing CBV much good just sitting around, because they sold them to IP Navigation group, which does just what it says on the tin. IP Navigation then created ChanBond for the purpose of buying and enforcing/licensing the patents and CBV transferred them in exchange for (drumroll . . . ) ...
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.
An eclipse! It's a sign! Time to restart the blog.Andrew E. Russell, displayed with permission
About a month ago we put the blog on hold for our storm of impending trials. Some of those ultimately resolved or moved, and we still have a couple coming up in the next five weeks. But, for now, we're starting the blog up again.
We have a back log of interesting things to address—starting with a post today about Judge Hall's views on summary judgment ranking and page limits. Enjoy!
Illustration of e-mails heading towards Delaware counsels' inboxes as trial ramps up.AI-Generated, displayed with permission
We here at IP/DE are all practicing attorneys. We try to keep up with around one post per day, but sometimes we have to hang up the gone fishin' sign.
This is one of those times. We have a two-week-long patent trial starting next week, two simultaneous one-week trials shortly thereafter, and we're also spinning up on pretrial disclosures for yet another after that. It's funny how they seem to come all at once.
In short, it's time to call it for now. Assuming we survive—see you soon!
Goodbye, 93-page joint claim construction briefAI-Generated, displayed with permission
Judge Andrews' form scheduling order for patent cases requires a joint claim chart. In that chart, in addition to listing the constructions, the Court requires the parties to explain why the parties are seeking construction of each term:
The Joint Claim Construction Chart should include an explanation of why resolution of the dispute makes a difference.
Judge Andrews added this requirement in early 2023. I haven't seen much activity on his dockets related to it—until last week.
In Belden Canada ULC v. CommScope, Inc., C.A. No. 22-782-RGA (D. Del.), the parties filed a joint claim construction chart. The chart included 21 terms and, each time, the parties …
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 …
I'm going in to trial soon so today's post will be light on jokes. Just the facts.
They were supposed to look like Dragnet (#best show if the '50s?) but instead they just look like they're on a fashionable date.AI-Generated, displayed with permission
(Eds. note: not the most informative post on the blog, just the most informative one Nate wrote)
(Other eds. note: rude.)
(Same eds. note: OK, 1 joke.)
You're probably aware that we've got a new judge in town. Just yesterday she issued an order cancelling a Markman hearing where the only issues raised in …
The text of the District of Delaware Local Rules require non-pro se parties to meet-and-confer on every non-dispositive motion:
RULE 7.1.1. Statement Required to be Filed with Nondispositive Motions.
Except for civil cases involving pro se parties or motions brought by nonparties, every nondispositive motion shall be accompanied by an averment of counsel for the moving party that a reasonable effort has been made to reach agreement with the opposing party on the matters set forth in the motion. Unless otherwise ordered, failure to so aver may result in dismissal of the motion. For purposes of this Rule, “a reasonable effort” must include oral communication that involves Delaware counsel for any moving party and Delaware …
Look, I get it. We write about redactions alot. Andrew wrote about redactions yesterday. I begged him not to, but he was like "shut up, I do what I want" before threatening me with the broken end of a bottle.
Actual reenactmentAI-Generated, displayed with permission
But alas, I have lived long enough to see myself become the villain of this blog. Judge Andrews issued an opinion the other day that had some guidance on redactions that was too helpful not to share (if a bit disheartening for the budding redactors). Both parties in Regenxbio Inc. f/k/a ReGenX v. Sarepta Therapeutics, Inc., C.A. No. 20-1226, D.I. 249 (D. Del Feb 22, 2024) (Oral Order) filed timely notices of …
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