Roundtable Discussion; The Future of Mineral Sands. Watch the video here.
the construction for the Pmax claim limitations at issue. See D.I. 59, p. 6. Moreover, Maxwell fails to explain how that general excuse supports the delay for the numerous proposed expansions. By way of example, Maxwell adds the invalidity defense that claims 7, 8, and 9 of the ’600 patent are indefinite, arguing that they broaden the scope of the claim 1. D.I. 76-1, Exh. A, p. 69. This issue was never discussed by the parties during the claim construction process. In short, Maxwell’s general, opaque excuse is not sufficient, as it is not tied to, and does not justify the delay in asserting, the proposed expansions of its invalidity contentions. The Scheduling Order in this case and applicable law require that Maxwell prove that it acted with diligence, and absent such a showing leave should be denied. D.I. 24, ¶ 7; see also O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1367-68 (Fed. Cir. 2006) (If the moving party has not demonstrated diligence, the Court need not consider the question of prejudice.) It is disingenuous for Maxwell to argue that CAP-XX would not be prejudiced by the addition of 700 more pages of invalidity contentions on top of the thousands of pages in Maxwell’s current invalidity contentions, all after the close of discovery regarding claim construction and CAP-XX solidified its claim construction positions. See Bayer Cropscience AG v. Dow Agrosciences LLC, C.A. 10-1045, pp. 8-9 (D. Del. June 7, 2012) (finding prejudice where moving party sought to amend invalidity contentions after the close of discovery regarding claim construction) (Exh. B, hereto). For the foregoing reasons, CAP-XX urges that the Court deny Maxwell leave to amend its invalidity contentions.
Respectfully, /s/ Philip A. Rovner
party,” who supplied samples of Maxwell devices, including the PC223. D.I. 76, p. 1. Maxwell, however, previously represented to this Court that the samples were obtained from a former employee.1 Exh. A hereto, July 15, 2021 Trans., p. 27. Maxwell failed to explain why it did not contact this and other former employees earlier in the case. Maxwell also states that there are “almostno individuals at Maxwell with knowledge of these devices.” D.I. 76, p. 1, emphasis added. Nonetheless, Maxwell also failed to explain: (i) why it did not prepare charts on its devices based on information from its current employees with knowledge of them; and (ii) why it did not search for documents related to those devices before July 2021, given that Maxwell knew about them. If Maxwell had done so in the first year and a half of this case, it could have included that information in its initial invalidity contentions, as CAP-XX thrice agreed to extend that deadline for Maxwell. In addition, Maxwell does not assert that it tested, dissected, or otherwise evaluated the sample devices from its former employee. Rather, Maxwell states that it started searching for documents in July 2021, after Maxwell’s former employee delivered the samples devices. D.I. 76, p. 2. Maxwell never says why it could not search for documents or individuals with information regarding those known devices before receiving samples, which it did not even test. Maxwell failed to show diligence regarding the alleged “Admitted Prior Art,” Miller Article, or Farahmandi ’135 patent – With regard to Maxwell’s new invalidity contentions regarding the alleged Admitted Prior Art and Miller article, all referenced in the patents-in-suit, Maxwell offered no excuse for its delay in asserting those contentions, and none exist. The Farahmandi ’135 patent is assigned to Maxwell, just like another Farahmandi patent cited by Maxwell in its initial contentions; so it was also known to Maxwell and no excuse warrants the delay in asserting that reference. Maxwell has no legitimate excuse for expanding its indefiniteness and written description defenses – Maxwell offered practically no explanation for the belated expansion of its written description and enablement defenses, which now include: (i) new arguments for Asserted Claims that recite a gravimetric or volumetric power maximum (“Pmax”) limitations; (ii) new arguments applicable to all Asserted Claims; and (iii) new arguments for certain claims in the ’600 patent. See D.I. 76-1, Exh. A, pp. 64-69. First, Maxwell asserts that its changes are “minor revisions”. D.I. 76, p. 3. The revisions are not “minor,” as they now include substantial new arguments against all Asserted Claims, as discussed above. Second, Maxwell alleges that that the changes are based on unidentified discussions related to the “Joint Claim Construction statement and claim construction briefing.” See D.I. 76, p. 3. This argument is belied by the fact that the parties agreed upon
Dear Judge Hall:
Plaintiff CAP-XX Ltd. (“CAP-XX”) respectfully submits this letter pursuant to the Court’s Order setting a discovery teleconference for November 15, 2021 [D.I. 75] and in response to Defendant Maxwell Technologies Inc.’s (“Maxwell”) letter dated November 1, 2021 [D.I. 76]. The crux of the dispute between the parties is whether Maxwell established good cause to amend its invalidity contentions to: (1) include three new pieces of prior art known by Maxwell since the outset of this case, including its own products and devices referenced in the patents-in-suit (which Maxwell refers to as Admitted Prior Art) and the Farahmandi ’135 patent assigned to Maxwell; (2) significantly expand its chart for the Miller article, also referenced in the patents-in-suit; and (3) substantially expand the grounds for its written description and indefiniteness defenses to include new arguments not previously asserted. As discussed below, Maxwell failed to establish that it diligently investigated these invalidity arguments, in part, because Maxwell did nothing for over 20 months, then took 3 more months before even raising with CAP-XX its intention to amend its invalidity contentions. CAP-XX notified Maxwell that its products infringe the patents-in-suit as early as September 2017, at which time Maxwell refused to engage in licensing discussions. CAP-XX negotiated with licensees and pursued other infringers from 2017 to September 2019, when it filed suit against Maxwell. Maxwell answered in June 2020 asserting affirmative defenses and counterclaims that the patents-in-suit are invalid. D.I. 17, pp. 9-13. Maxwell also filed an amended answer in July 2020, asserting the same affirmative defenses and counterclaims regarding invalidity. Presumably, Maxwell investigated the bases for its patent invalidity challenges at that time. Maxwell Failed to Show Any Diligence for the first 20 months of the 23-month delay – Maxwell asserts that it recently discovered the prior art at issue, after substituting new counsel of record in April 2021, and only began searching for relevant information in June 2021, notwithstanding that Case Maxwell knew of the alleged prior art since the inception of this case. D.I. 76, p. 1. Thus, for 20 of the 23-month-delay in amending its invalidity contentions, Maxwell is silent as to its efforts or lack thereof. The case law is clear that the substitution of new counsel of record is not a legitimate excuse for a lack of diligence. British Telecomms. PLC v. IAC/InterActiveCorp, Civil Action No. 18-366-WCB, 2020 U.S. Dist. LEXIS 99888 *7 (D. Del. 2020); see alsoGlaxoSmithKline LLC v. Glenmark Pharms. Inc., No. CV 14-877, 2016 U.S. Dist. LEXIS 173408, 2016 WL 7319670, at *3 (D. Del. Dec. 15, 2016) ("new counsel's entry into a case does not serve as a magic wand that enables the party to conjure up a showing of good cause"). Maxwell failed to show diligence regarding its devices – Maxwell asserts that it recently found a “thir
Looks like you've dropped the ball there Open = Classic123
The Honorable Colm F. Connolly U.S. District Court for the District of Delaware 844 North King Street Wilmington, DE 19801-3570 Re: CAP-XX, Ltd. v. Maxwell Technologies, Inc., C.A. No. 19-1733-CFC-JLH
Dear Judge Connolly: The parties submit this letter pursuant to § 17 of the Court’s November 12, 2020 Scheduling Order (D.I. 24) as amended on April 26, 2021 (D.I. 44). On October 15, 2021, the following counsel met and conferred via telephone conference for approximately 15 minutes regarding the constructions for the disputed claim terms: For Plaintiff, Philip Rovner of Potter Anderson and Corroon LLP, and Chris Perque of FisherBroyles LLP, and for Defendant, Elizabeth Shrieves of Cooley, LLP and Jeremy Tigan of Morris, Nichols, Arsht & Tunnell LLP. On October 19th, the same counsel, with the addition of Adam Pivovar of Cooley, LLP on behalf of Defendant, met and conferred via telephone conference for approximately 20 minutes regarding the disputed constructions. While no additional agreements were reached during those conferences, the parties previously modified certain disputed constructions during briefing in an effort to narrow their disputes. Case 1:19-cv-01733-CFC-JLH Document 73 Filed 10/22/21 Page 1 of 2 PageID #: 1323
The Honorable Colm F. Connolly Page 2 As reflected in the Amended Joint Claim Construction Chart, the parties have agreed upon the construction of several claim terms. Respectfully, /s/ Philip A. Rovner Philip A. Rovner (#3215)
Hey Elon, maybe you can put some of those positive vibes towards CAP-XX on your twitter feed?
Looks about right I have the following dates:
Joint Claim Construction Brief due by 8 October 2021.
Rescheduling Video Mediation Conference 19 October 2021
A Markman Hearing is set for 2 November 2021 at 09:00 AM in Courtroom 4B before Judge Colm F. Connolly.
This was the original schedule. Marksman hearing 2nd November.
SCHEDULING ORDER: Case referred to the Magistrate Judge for the purpose of exploring ADR.
Discovery due by 11 Feb 2021.
Joinder of Parties due by 13 Aug 2021.
Amended Pleadings due by 13 Aug 2021.
Joint Claim Construction Brief due by 8 October 2021.
A Markman Hearing is set for 2 November 2021 at 09:00 AM in Courtroom 4B before Judge Colm F. Connolly.
Dispositive Motions due by 15 July 2022.
Proposed Pretrial Order due by 22 July 2022.
A Final Pretrial Conference is set for 13 October 2022 at 03:00 PM in Courtroom 4B before Judge Colm F. Connolly. A Jury
Trial is set for 24 October 2022 at 08:30 AM in Courtroom 4B before Judge Colm F. Connolly.
A Jury Trial is set for 25 October 2022 at 08:30 AM in Courtroom 4B before Judge Colm F. Connolly.
Signed by Judge Colm F. Connolly on 12/11/2020.
Posted on other thread.
htTps://ssl.lvl3.on24.com/event/30/14/63/9/rt/1/documents/resourceList1614738195118/webinarenergyharvestingppt1614738189359.pdf
Anyone know how much extended time is being requested for?
I didn't make the call in. Any feed back would be much appreciated. Was the Scottish lady asking questions?
Funny how yesterday I am sure Colette was told that no fundraising would happen...then today...
Collet whoever you are.....thank you :)
She's great!!
Dungiven, I think it means Ioxus have made a Disposition (legal request) for the following people to be cross examined between the dates of 11 to 23 Dec. The first person to appear is Anthony Michael Vassallo who I think is an expert in energy science from Sydney..... https://trove.nla.gov.au/people/561637?c=people
"The Company has been successful in winning new business from a range of these markets, such as ABB industrial actuators, E-Ink displays, Itron smartmeters, Ingenico POS terminals, Honeywell scanners, Thales systems, Roche wearable pumps for diabetics, Turck electronic locks, VW dashboards and Yamaha sound systems".
I see Ioxus are also requesting an extra external Attorney to join their case.
Ioxus court hearing....?
Jees you are the biggest idiot. CAP-XX are an Australian company but they are listed on the AIM market, so abide by AIM rules! They have 6 months to publish accounts.
Ioxus update from yesterday - STIPULATION TO EXTEND TIME for the parties to submit a Joint Claim Construction Brief to September 30, 2019