That Series of Delaware Events Grows More Extraordinary
- December 3, 2022
Category: Top Insight
In a November 30 memorandum, Delaware Chief Judge Colm F. Connolly has “explain[ed] more fulsomely and in writing” the reasons that he ordered patent plaintiff Nimitz Technologies LLC to produce to the court agreements and communications related to the conduct of its litigation. Nimitz had filed a petition for a writ of mandamus, using extraordinary language to describe the inquiries underway in Judge Connolly’s courtroom and prompting the Federal Circuit to stay the district court’s disclosure order “pending further action” from the appellate court. As amici have begun weighing in on that petition, Judge Connolly has—over the course of a 78-page memorandum that his chambers has now submitted via letter to the Federal Circuit in the mandamus proceeding—recounted the course of events that led the parties to this point, addressing the court’s authority to engage in its recent inquiries, noting that the earlier order requiring the production of materials did so only to the court (not to the opposition or public), and suggesting that the assignment of patents to Nimitz may even be invalid—all against a backdrop of concerns about “counsel’s professionalism and potential role in the abuse of the Court”. Nimitz has filed a reply brief in which it argues that it had no obligation to comply with Judge Connolly’s standing orders in the first place, raising the specter of due process and equal protection problems under the US Constitution by virtue of alleged discrimination against a “disfavored class of plaintiffs”. Meanwhile, three other entities before Judge Connolly—Creekview IP LLC, Swirlate IP LLC, and Waverly Licensing LLC—filed petitions for writs of mandamus of their own that raise new issues, including whether the court had the authority to post its April 2022 standing orders at all. The Federal Circuit has now denied one of those petitions. In other words, the series of extraordinary events in Delaware stretches on.