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Intellectual Property Law

Delaware IP Law Blog

By Karen E. Keller, Andrew A. Lundgren et al.

Post Frequency: 3.4/day

Last Entry: March 31, 2011 at 16:14:54

Judge Joseph J. Farnan, Jr.: Function of a Comma in Claim Construction

Posted on May 06, 2009
Judge Farnan found an English professor's declaration opining on the proper function of a comma to be admissible under Rule 702 as part of the claim construction process. To the extent a party argues that it contradicts the intrinsic evidence...

Chief Judge Gregory M. Sleet: Motion to Enforce Settlement Agreement

Posted on May 06, 2009
Chief Judge Sleet recently granted, in part, plaintiff?s motion to enforce the parties? settlement agreement to dismiss the case. Rohm and Haas Electronic Materials, LLC v. Honeywell International, Inc., C.A. No. 06-297-GMS, Memo. (D. Del. Apr. 16, 2009)...

New District of Delaware Intellectual Property Case Filings

Posted on April 29, 2009
4/4: Mallinckrodt Inc., Liebel-Flarsheim Co. v. E-Z-EM Inc. and ACIST Medical Systems, Inc. (patent infringement) 4/6: Perren-Vibes Music, Inc., Universal Polygram International Publishing, Inc., Roger Ball, Alan Gorric and Owen McIntyre D/B/A Average Music, Stone City Music, Bleu Disque Music,...

Judge Joseph J. Farnan, Jr.: Subtle reminder to parties ? give the Court the power to find in your favor

Posted on April 15, 2009
In a recent case, Defendant Tivo, Inc. (?Tivo?), moved the Court to dismiss Plaintiffs? (collectively, ?Echostar?) case pursuant to the Court?s power under the Declaratory Judgment Act. Dish Network Corp. v. Tivo, Inc., C.A. No. 08-327-JJF, Memorandum Opinion (D...

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Joseph J. Farnan: Colloquial Versus Textbook Definitions in Claim Construction

Posted on April 13, 2009
In a recent decision, district judge Joseph J. Farnan rejected a "colloquial" claim definition in favor of the "textbook" meaning: "[T]he dispute between the parties primarily centers around whether 'power' should be interepreted according to its ordinary, 'textbook' definition or...

Chief Judge Gregory M. Sleet: Dismissal Granted Based on First-Filed Rule

Posted on April 13, 2009
Chief Judge Sleet recently granted defendant Rymed Technologies, Inc.'s motion to dismiss a patent infringement suit, where Rymed had previously filed a declaratory judgment suit against the plaintiff in another district. Vygon v. Rymed Technologies, Inc...

Judge Sue L. Robinson - DJ Jurisdiction --What is Enough?

Posted on April 13, 2009
Businesses continue to struggle with the "post-MedImmune" environment and determining when a sufficient "case or controversy" exists to file a declaratory judgment suit against a patentee. Judge Robinson recently provided some further guidance on this issue in an even more...

Judge Joseph J. Farnan, Jr.: Motion to Strike Answer, Defenses and Counterclaims

Posted on April 10, 2009
Reminding parties that the Court disfavors motions to strike pursuant to Fed. R. Civ. P. 12(f), Judge Farnan, granted in part and denied in part plaintiffs? motion to strike portions of the defendant?s answer, defenses and counterclaims in Symbol Technologies,...

Magistrate Judge Mary Pat Thynge: Parties Should Be Able to Terminate Litigation When Trial Unattractive

Posted on April 07, 2009
Over a year after filing a lawsuit alleging infringement of five patents, the plaintiffs decided to voluntarily move to dismiss the case against the defendant with prejudice and proceed against a group of different defendants. After the Court granted that...

New District of Delaware Intellectual Property Case Filings

Posted on April 06, 2009
3/17: Discovery Communications, Inc. v. Amazon.com, Inc. (patent infringement) 3/19: Research Foundation of State University of New York, New York University and Galderma Laboratories v. Mylan Pharmaceuticals Inc. (patent infringement) 3/19: OSI Pharmaceuticals Inc...

Judge Sue L. Robinson: Transfer Denied

Posted on April 06, 2009
In what is a common factual scenario in this court, a defendant is sued here in Delaware and within days files a reciprocal declaratory judgment suit in another district and at the same time files a motion to dismiss or...

Judge Sue L. Robinson: Some Notes on Reexamination

Posted on April 03, 2009
Some Notes from Judge Robinson on Reexamination: - A prosecution bar will not extend to counsel (for either party) involved in a reexamination proceeding as neither party's confidential information is relevant to that proceeding. - Amendments and revisions to claims...

Judge Joseph J. Farnan: 271(e)(2) -- Not a Jurisdictional Statute

Posted on March 19, 2009
Section 271(e)(2) is the well known provision of the Patent Act that creates an artificial act of infringment by the filing of an ANDA with the FDA. This statute is the means by which a "case or controversy" arises so...

New District of Delaware Intellectual Property Filings

Posted on March 18, 2009
2/19: Flashpoint Technology, Inc. v. Aiptek, Inc., Argus Camera Co., LLC, Bushnell Inc., DXG Technology USA, Inc., DXG Technology Corp., Leica Camera AG, Leica Camera, Inc., Minox GMBH, Minox USA, Inc., Oregon Scientific, Inc., Ritz Interative, Inc., Ritz Camera CEnters,...

Delaware FBA Chapter Hosts Legal Ethics Progam

Posted on March 11, 2009
Continuing its federal-practitioner CLE series, the Delaware chapter of the Federal Bar Association hosted an engaging and challenging program on legal ethics this afternoon in Wilmington. Following a luncheon at the Hotel du Pont with the district judges, the event...

Sue L. Robinson: Motion to Amend Not Futile When "Substantive Dispute" Present

Posted on March 10, 2009
Last week, District Judge Sue L. Robinson rejected a party's attempt to stave off a timely motion to amend on the grounds of futility: "I generally reject such futility arguments if they present substantive disputes, either of the law or...

Sue L. Robinson: Materiality of Foreign Declaration Questioned

Posted on March 05, 2009
Under the PTO's patent-examining manual, applicants "have a duty to bring to the attention of the Office any material prior art or other information cited or brought to their attention in any related foreign application." According to yesterday's decision by...

Judge Sue L. Robinson: Foreign Participation in the U.S. Market Through Third Party U.S. Licensee Deemed Sufficient to Withstand Motion To Dismiss

Posted on February 27, 2009
Another guest post by our colleage, Pilar Kraman : On February 20, 2009, Judge Robinson issued an opinion granting in part and denying in part defendant Abbott Laboratories? motion to dismiss. Ethypharm S.A. France v. Abbott Laboratories, C.A. No. 08-126-SLR,...

Guest Post - The Interplay of Rule 16 and Rule 26(f) and Timing of the Meet and Confer

Posted on February 26, 2009
In a short minute order, Judge Sleet recently confirmed that the Federal Rules of Civil Procedure permit discovery to begin before the Court sets the Rule 16 conference. Many defendants in recent years have refused to participate in the Rule...

Chief Judge Gregory M. Sleet - Stay Pending Reexam GRANTED

Posted on February 25, 2009
Guest Post by Pilar Kraman: Although recent cases in the District of Delaware have involved the denial of motions to stay pending reexamination, on February 24, 2009, Judge Sleet granted the defendants? Motion to Stay Pending Inter Partes Reexamination...

Sue L. Robinson: Convenience Transfer Warranted by Operations "Regional" in Scope

Posted on February 24, 2009
In the District of Delaware, parties with nationwide operations are often unsuccessful in seeking transfers out of the jurisdiction. This is especially true when Delaware corporations are involved. But a decision today by district judge Sue L. Robinson reminds litigants...

Judge Sue L. Robinson: Form 18 Complies with post-Twombly Pleading Standard for Infringement Case

Posted on February 23, 2009
A great area of discussion since the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) has been whether the bare bones pleading requirements typically seen in a patent infringement complaint would be sufficient or whether...

Mary Pat Thynge: Confirming Deposition Discovery Warrants Addition of Late Inequitable-Conduct Claim

Posted on February 23, 2009
In managing litigation, trial judges are often called on to enforce the structure of the case while simultaneously preserving the fluidity of the parties' claims. These competing goals take form in the rules governing scheduling orders and the amendment of...

Guest Post - Magistrate Judge Stark: Discovery Behavior Not Exemplary But Not Bad Faith

Posted on February 20, 2009
The following post was graciously written by one of our fellow associates, Pilar Kraman. On February 17, 2009, Magistrate Judge Stark granted defendant Hewlett-Packard?s Motion for Leave to Amend Answer and Affirmative Defenses. St. Clair Intellectual Property Consultants, Inc...

New District of Delaware Intellectual Property Case Filings

Posted on February 19, 2009
1/27: Vianix Delaware LLC v. Nuance Communications Inc. (copyright infringement) 1/29: Tales AG Informationstechnologien v. Cisco Systems, Inc. (patent infringement) 1/30: Cephalon Inc. and CIMA Labs Inc. v. Barr Pharmaceuticals, Inc., Barr Pharmaceuticals, LLC and Barr Laboratories, Inc...

Judge Joseph J. Farnan, Jr.: New Jury Verdict - CIF Licensing, LLC v. Agere Systems, Inc.

Posted on February 19, 2009
On February 17, 2009, a Delaware jury returned a verdict in the case of CIF Licensing, LLC, d/b/a/ GE Licensing v. Agere Systems, Inc., C.A. No. 07-170-JJF. The patents-in-suit, U.S. Patent Nos. 5,048,054, 5,428,641, 5,446,758 and 6,198,776, involve technology related...

Joseph J. Farnan: ?Comprising? Rule Inapplicable When Use Limited to Specification

Posted on February 16, 2009
Last week, district judge Joseph J. Farnan Jr. issued a Markman decision addressing the claims of a skin-care-product patent. Notable among the Court?s analysis is its discussion of the term ?comprising? in the context of the specification. The Court considered,...

Joseph J. Farnan: Secondary ANDA Filer Demonstrates DJ Jurisdiction After Primary Delays Entry into Market

Posted on February 06, 2009
In an effort to curb collusive extensions of the 180-day exclusivity period between brand drug manufacturers and primary ANDA filers, Congress extended declaratory-judgment jurisdiction to secondary ANDA filers under the 2003 amendments to the Hatch-Waxman Act...

New District of Delaware Intellectual Property Filings

Posted on February 04, 2009
1/26: Proctor & Gamble Company and Hoffman-La Roche, Inc. v. Sun Pharma Global Inc. (patent infringement) 1/26: Pylon Manufacturing Corp. v. Jamak Fabrication-Tex LLC (patent infringement) 1/27: Vianix Delaware LLC v. Nuance Communications Inc. (patent infringement) 1/29: Teles AG Informationstechnologien...

Sue L. Robinson: Inventorship Claim on Chemical Patent Rejected

Posted on February 03, 2009
A recent decision by district judge Sue L. Robinson wades into the sometimes murky waters of inventorship. In the underlying litigation, Vanderbilt sought to add several of its professors as inventors to a chemical-compound patent held by ICOS. The requisite...

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