The Latest From Delaware
The good people at the Delaware IP Law Blog have picked up steam after a quiet February and are back with some great posts. Last week, there was the interesting observation that, as a per cent of the civil case load, Delaware outranks the E.D. Texas and E.D. Virginia:
See full post here.In 2007, IP plaintiffs filed 181 cases, 30 more than in 2006. These 2007 IP cases (patent, trademark, and copyright) filled nearly 20 percent of the District of Delaware’s entire civil docket. To put the number of IP cases our judges handled in perspective, consider that in all of last year, the Court received only 46 non-IP tort complaints. Of all civil categories, only prisoner petitions exceeded IP filings, and not by much: 202 to 181.
By comparison, the Eastern District of Texas’s 338 IP cases filed in the twelve-month period ending March 2007 (the latest stats available) represented 11 percent of its civil docket. The 144 IP cases filed in the Eastern District of Virginia in the same period comprised only 4 percent of that Court’s civil filings.
Coupled with a low reversal rate, Delaware is indeed a good place to be. While the “rocket dockets” shift in and out of favor (see IP Law 360’s recent take on this development), Delaware will continue business as usual.
Also, there was a noteworthy case in Siemens Medical Solutions USA Inc. v. Saint-Gobain Ceramics & Plastics Inc., C.A. No. 07-190-SLR (D. Del. March 7, 2008), where the patentee/licensor apportioned the right to sue by requiring the licensee to notify the licensor of any 3rd party infringement. If the licensor did not file suit within 90 days, the licensee would be free to initiate its own action against the 3rd party. According to the court, such an arrangement did not convey "all substantive rights" to a licensee:
While the license clearly gives [licensor] the exclusive right to sue during the first 90-day period, there is no specific, reciprocal language giving [licensee] the exclusive right to sue after the first 90-day period.As such, the licensee had no standing to sue (at least until the licensor is joined). See the full post here.
Posts
The DJ plaintiff, who had earlier been sued in the Eastern District of Texas, argued against transfer there based on prior Delaware litigation involving the same patent.Can earlier litigation on the same patent and in the same court justify a departure from the well-worn first-filed rule?
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