Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

Defendant, a Canadian entity, previously asked the court to postpone judgment until plaintiff proved the validity of the patent-in-suit, claiming defendant could not afford representation in the U.S.  The court subsequently determined that certain claims were indefinite.  In addition, the court’s claim construction resulted in a requirement of multiple parties’ participation in order to infringe, finding the law of divided infringement prohibits infringement by defendants.  The case was dismissed as to all other defendants.  The remaining defendant complaints if improper service of process since the process was not served via the Central Authority.  The court finds that service by mail of untranslated copies of the complaint was sufficient since Canada did not object to service by mail.  The court declines to enter default judgment because plaintiff has failed to show prejudice, and defendant presents facially meritorious defenses.  Defendant’s delay is furthermore not attributable to bad faith.  The court requires defendant to answer by September 15 through counsel, but if it cannot retain U.S. counsel, it may proceed without Delaware counsel.  If it cannot afford any counsel, upon the filing of an affidavit to that effect the court will refer this to the Federal Civil Panel to find volunteer counsel.