Bloomberg Law News
Delaware Judge Shortage Is Over, Lawyers Delighted
Posted Aug. 3, 2018, 1:00 PM

• Senate confirms two judges for federal district court bench in Delaware
• The court has had two out of four judgeships vacant since May 2017

Patent litigators who practice before the busy Delaware federal district court are hailing the Senate’s confirmation of two new judges to the federal bench.

The more than year-long wait to fill two vacant judgeships is finally over. The U.S. Senate by voice vote confirmed Maryellen Noreika, a well-known patent litigator with Morris, Nichols, Arsht & Tunnell LLP in Wilmington, and Colm F. Connolly, a former U.S. Attorney now the managing partner of the Wilmington office of Morgan Lewis, to fill judgeships that have been vacant since May 2017.

At full strength, the court is supposed to have four judges. Patent litigators are particularly invested in having a full complement of judges in Delaware because it’s consistently been a popular jurisdiction for patent case filings. Many corporations have a Delaware connection, with more than 50 percent of publicly traded companies in the U.S. incorporated there.

The court ranks first among federal district courts in the number of cases it handles involving disputes between brand and generic drug companies over generic companies’ bids to sell copycat versions of the drugs, called abbreviated new drug applications (ANDA). Bristol Meyers Squibb & Co., Genentech Inc., Pfizer, Sanofi-Aventis, and Shire Plc are just a few of the branded drug companies that have sued generic drug companies for patent infringement in Delaware federal district court over the past year.

Because of the new judges’ litigation backgrounds, they will be able to immediately dig in to help handle the district court’s heavy caseload, Denise Seastone Kraft, a patent litigator with DLA Piper in Wilmington, told Bloomberg Law Aug. 3.
The Senate confirmed the judges Aug. 1, which Kraft called “a day of celebration among the Delaware Bar with the long-awaited and anticipated confirmation of our new District of Delaware Judges.”

The court will work quickly to get the new judges on the bench, Karen Keller of Shaw Keller LLP in Wilmington, Del., told Bloomberg Law Aug. 3. Keller’s practice primarily focuses on intellectual property and complex commercial litigation in district courts across the country and at the International Trade Commission.

Jake M. Holdreith, a patent litigator at Robins Kaplan LLP in Minneapolis, told Bloomberg Law Aug. 2, “I’m very happy to see the Delaware bench back at full strength and with skilled and experienced trial lawyers moving into the vacant seats.” Holdreith frequently practices before the Delaware district court, most recently winning a noninfringement ruling for Amneal Pharmaceuticals in ANDA litigation over Amgen Inc.’s blockbuster kidney disease drug Sensipar.

ANDA litigation involves brand-name drug companies suing generic drug companies for patent infringement based on their submission of an ANDA to the Food and Drug Administration. An ANDA seeks approval of a generic version of a branded drug before patents covering the branded drug expire.

Visiting Judges: What Happens?
The court had been calling on several visiting judges to help handle its busy docket while waiting for the vacancies to be filled. Eight of the visiting judges were tapped just to handle the overflow of patent cases.
The judge in the Sensipar case, Judge Mitchell Goldberg of the U.S. District Court for the Eastern District of Pennsylvania, is one of the visiting judges who had been helping handle the overflow of patent cases.

“The District continues to be one of the busiest in the country for patent cases,” Holdreith said. “Chief Judge [Leonard P.] Stark, the rest of the bench, and the gracious visiting judges have done a fantastic job of covering the load in the interim, but it will be very helpful to the bar and the litigants to get back to a full complement of judges.”

How the court will handle cases currently overseen by the visiting judges isn’t yet clear, Keller said. “No one knows yet,” she said.
The court has not said anything about what’s going to happen to visiting judges’ cases or whether they’ll stay on for a time after the new judges come on, she said.

The last time the court used visiting judges, the judges were given the option of returning their docket or keeping their cases and seeing them through, Keller said. “I don’t know whether they’ll do that again.”