PublishedNovember 18, 2022

Federal Circuit Temporarily Pauses Judge Connolly’s Disclosure Orders In Delaware

In its order on a mandamus request filed by MAVEXAR-linked entity Nimitz Technologies LLC, the Federal Circuit has temporarily paused Judge Connolly’s order that entities in his court disclose details of any third-party litigation funding arrangements.

If you haven’t been following these cases, Judge Connolly issued a standing order requiring certain disclosures from parties in his court. This led to some fireworks over the past few weeks, as putative owners of patent assertion entities that have filed suits in his court were called to testify. One testified that she hadn’t spoken with her LLC’s attorneys at all prior to the filing of the case—although she’s married to a MAVEXAR attorney; another is a food truck owner who testified that he was approached about a “passive income” opportunity and that he didn’t know who had set up his LLC.

And then there’s Nimitz. Nimitz is run by a full-time sales person, who was approached by MAVEXAR with a similar opportunity and filed incorporation paperwork listing a P.O. Box. He had no involvement with the patent-in-suit, and was not represented by a lawyer in this transaction.

So, who is MAVEXAR? Well, they seem to be associated with IP Edge, an assertion entity linked to thousands of cases filed by hundreds of entities incorporated with similar structures to those in the Delaware cases.

Small surprise that Judge Connolly implemented a standing order requiring disclosure of these sorts of background arrangements!

Especially because—as the excellent IP/DE blog noted in one of its articles on these hearings—this is something only a judge could do. A party trying to investigate this sort of information would be stymied by various procedural roadblocks; it’s much harder to tell the judge who you’re in front of that you won’t provide them with that information. But it’s also information that’s of particular relevance to a judge, who has to ensure that they don’t face conflict-of-interest claims down the road. They also might need this information in order to make sure that a plaintiff who misbehaved in one case isn’t escaping liability by hiding behind a series of allegedly unrelated shell companies. It could also be relevant to ensuring that the right parties are joined to a case—after all, if the assignees lack sufficient control over the litigation, then they might not actually own the patent and MAVEXAR might have to join the case in order to assert its patents.

That brings us to this week’s order pausing Judge Connolly’s order while the Federal Circuit is briefed. Perhaps unsurprisingly, Nimitz—or maybe MAVEXAR, given the testimony in front of Judge Connolly about who controls litigation—is trying to get out of disclosing its backers by complaining to the Federal Circuit that it’s being asked about who funds and controls its litigation strategy.

The real question is: what is Nimitz and MAVEXAR trying to hide?

Josh Landau

Patent Counsel, CCIA

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

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