Stephanie Smiertka Riley is Of Counsel with Womble Bond Dickinson. She focuses her practice on corporate, commercial, and intellectual property litigation in all Delaware Courts, especially the United States District Court for the District of Delaware, Delaware Court of Chancery, and Delaware Superior Court. Her experience in complex commercial litigation extends to business disputes, including misappropriation of trade secrets, breaches of contract, and tortious interference; consumer protection and RICO claims; constitutional law claims; and pharmaceutical and medical device multi-district litigations.
Heightened mandatory initial disclosures in patent litigation may affect a client’s decision to pursue litigation in a forum, especially if there is a risk (real or perceived) of having to disclose sensitive company information from the outset of litigation. In the District of Delaware, there has been much attention on recent requirements for transparency regarding litigation funding and company and/or patent ownership issued by Chief Judge Colm Connolly. The Chief Judge’s fervent enforcement of those requirements has prompted a writ of mandamus and potential review by the Federal Circuit. Although the propriety of the third-party litigation funding order may be reviewed by the Federal Circuit, best practices for complying with both the third-party litigation funding and Rule 7.1 Standing Orders will be discussed, along with potential impact of those orders on patent litigation in the long term, and considerations of whether certain information could be sealed.
While many patent litigators have no plans to litigate in bankruptcy court, it is a possibility if the infringer of a client’s patent files for bankruptcy. The United States Bankruptcy Court for the Eastern District of Wisconsin recently conducted a Markman hearing. How did that happen? After being sued for patent infringement in district court, the alleged infringer sought refuge in the bankruptcy court, staying the district court litigation. The plaintiff then filed a claim in the defendant’s bankruptcy case, which ultimately triggered the bankruptcy court’s jurisdiction. While rare, other bankruptcy courts have conducted claim construction proceedings. As discussed herein, the bankruptcy court ultimately granted a joint request for vacatur, prompting us to revisit the doctrine of vacatur.
After a client prevails in patent litigation in the United States District Court for the District of Delaware, the client often wants to know whether it can obtain its attorneys’ fees from the opposing party. The answer is yes, but only if the court finds exceptionality under 35 U.S.C. § 285, which states “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” (Although 35 U.S.C. § 285 applies to patent litigation in all United States district courts, this article focuses only on recent decisions of the District of Delaware. Another tool available to clients are enhanced damages claims under 35 U.S.C. § 284. Damages under Section 284, however, are “reserved for egregious cases typified by willful misconduct” and are not a focus of this article.)