Last September, District Judge Gregory B. Williams took the federal Delaware bench, alongside Chief Judge Colm F. Connolly and Judges Richard G. Andrews and Maryellen Noreika, after Judge Leonard P. Stark left to join the Federal Circuit. Delaware has long been one of the busiest venues for patent litigation; it is therefore no surprise that six months into his tenure Judge Williams has now faced and resolved a good number of issues arising from the patent portion of his docket. In that time, with several trials on the horizon, he has issued multiple claim construction rulings; considered and resolved multiple Alice challenges; addressed discovery related to a third-party litigation funder; navigated, at least initially, a potential standing issue arising from the international source of patents that the plaintiff purportedly acquired through a receivership; and refused to enter a default judgment because the plaintiff’s pleading in the complaint “can charitably be described as sparse”, too sparse to establish infringement even upon default.

The Federal Circuit has decided not to disturb a Delaware ruling that led to the reversal of a $236.8M verdict won by Densify against VMware last January—at least, for now. In June 2020, District Judge Leonard Stark dismissed one of the two Densify plaintiffs in suit—Cirba Inc. (“Inc.”)—for lack of standing, finding that it lacked exclusionary rights in the asserted patents because it had transferred too many of those rights to coplaintiff Cirba IP, Inc. (“IP”). On September 22, the Federal Circuit denied Inc.’s mandamus petition challenging that standing ruling but declined to address whether the company could cure the ownership defect retroactively. The court’s decision could lead to yet another chapter in this appellate battle, which has highlighted a growing district court split over the requirements for standing in patent suits.

Cirba Inc. (d/b/a Densify) and Cirba IP, Inc. (collectively, “Densify”) have filed suit against Dell (VMware) (1:19-cv-00742) over the provision of “vRealize Operations (‘vROps’), Distributed Resource Scheduler (‘DRS’), and other related products and services”, which offer optimization in virtual environments. The plaintiffs assert two patents, the first generally related to the management of virtualized environments; the second, to monitoring resource utilization or performance data and visualizing the risk of infrastructure overload. Densify also pleads claims for unfair competition under the Lanham Act, for deceptive trade practices under Delaware law, and for common law trademark infringement (involving the use of “Densify Marks” “densify”, “densification”, and “densifying”).