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X-Ray Diffraction Is A Real Pain

Nathan R. Hoeschen, Nov. 6, 2025
Pennypack

As a young lad, analytical chemistry was my jam. I liked big cool machines with lasers and flames. I liked dissolving things in acid. I liked anything that gave off a swirly gas when heated.

Hans Reniers, Unsplash

For that reason, I have a special empathy for the plaintiffs in Harmony Biosciences, LLC v. Lupin Ltd., C.A. No. 23-1286-JLH-SRF (D. Del. Oct. 27, 2025), and their poor, overworked experts.

The patent there was for a specific crystalline form of a drug. Typically, you would figure out this form via X-ray diffraction (XRD), which involves shooting X-rays at a crystal (typically powdered) from different angles. Via science too involved to get into here, you get a series …

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No Expert, No Infringement? Court Grants Summary Judgment Against Sanctioned Patent Plaintiff

Andrew E. Russell, Nov. 5, 2025
Protective Order Protective Order Violation

Sir, is this
Sir, is this "complex technology" requiring an expert? Nah British Library, Unsplash

As we laid out in Friday's post, there was a hearing today in Rein Tech, Inc. v. Mueller Systems, LLC, C.A. No. 18-1683-MN (D. Del.) regarding another potential protective order violation. The defendant in Rein alleged that the inventor (who has seen AEO information) has continued to prosecute another patent application in the same field, despite the prosecution bar in the Court's protective order.

Update on Today's Hearing

The Court opened the hearing today by announcing that it intended to grant the defendant's SJ motion of non-infringement. Shortly thereafter, counsel for the patentee informed the Court that the patentee is now willing to …

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Sprawling, Slothful Beasts

Nathan R. Hoeschen, Nov. 4, 2025
Daubert

Summary Judgment and Daubert briefs are often sprawling, slothful beasts. They shift from issue to issue lodging complaints both specific and general over the course of many pages and exhibits.

Rude...
Rude... NOAA, Unsplash

Accordingly, it can be hard parse which arguments are actually being pressed and require a response.

Today's case is a sobering reminder of the consequences of missing one.

The plaintiff's opening Daubert brief in Magnolia Med. Techs., Inc. v. Kurin, Inc., C.A. No. 24-1124-CFC, consisted of 18 pages complaining about how the defendant's invalidity report was "devoid of any analysis or detail and fails at baseline to even map the prior art to the claim elements or explain what combination or modification of the prior art …

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Update Re: Court's Disqualification of Testifying Expert and Other Sanctions for Protective Order Violation—New Hearing This Week

Andrew E. Russell, Nov. 3, 2025
Protective Order Protective Order Violation

[Update: The hearing below has moved to 2:00pm today in Courtroom 4B (not 4A)]

Fireworks, n.,
Fireworks, n., "a display of temper or intense conflict" (per Merriam-Webster.com) Moritz Mentges, Unsplash

Over the summer, we posted twice about an interesting hearing in Rein Tech, Inc. v. Mueller Systems, LLC, C.A. No. 18-1683-MN (D. Del.).

In the first post, we discussed how the Court sanctioned a party for misusing information that was designated under a protective order. In the second, we talked about how the defendant cleverly used PDF metadata to help show that the protective order violation took place.

Since then, the case has continued moving forward towards trial. It is set for a pretrial conference on …

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Does O2 Micro Raise the Bar for Waiver of Claim Construction Issues?

Andrew E. Russell, Nov. 2, 2025
Claim Construction Waiver Forfeiture

Wave
Jeremy Bishop, Unsplash

Last week, Judge Bryson ruled on a motion in limine where an accused infringer sought to strike the patentee's alleged "new theory" of validity just before trial or, in the alternative, for a permission to raise a new claim construction regarding that theory.

The Court ultimately denied the motion in limine because the accused infringer was on notice of the theory, but granted its alternative motion for permission to raise a new claim construction position regarding the theory, citing O2 Micro.

The Accused Infringer Was On Notice of the Issue

The Court easily denied the motion to strike, finding seven different ways that the accused infringer either was or should have been aware of the …

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The Show Must Go On

Nathan R. Hoeschen, Oct. 30, 2025
Summary Judgment Stay

It can take quite a while to resolve summary judgment motions. In essentially every patent case they take up hundreds of pages of briefing accompanied by hundreds more pages of declarations, reports, and exhibits on the most arcane technical matters.

Stack of Papers
Stack of Papers Christa Dodoo, Unsplash

For this reason, all of our Article III judges' form scheduling orders (except Judge Andrews) explicitly instruct the parties to leave 3 or 4 months (3 for Judge Connolly, 4 for the remainder) between the close of briefing and the pretrial conference.

Because a modern patent trial tends to involve a great deal of back and forth on exhibit lists, designations, statements of facts, etc., the pretrial order is usually prepared -- or …

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Judge Williams Issues Orders Across Ten Cases Directing Discovery to Move Forward Pending Resolution of Motions to Dismiss

Andrew E. Russell, Oct. 29, 2025
Discovery Pending MTD MTD

Logjam
AI-Generated, displayed with permission

When you file a motion to dismiss in the District of Delaware, the case case go one of two ways, depending on the judge. Most of our current judges do not require discovery to move forward if a motion to dismiss is filed, at least absent action from the parties. Some District of Delaware judges, though, have required discovery to move forward pending a motion to dismiss. Former Chief Judge Stark made this explicit in his procedures, for example, and Judge Burke has also adopted this practice.

This seemingly minor difference in policy can make a huge difference in how a case proceeds. A complicated motion to dismiss can sometimes take a busy court anywhere from …

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Judge Williams Rejects Dicta from Two Federal Circuit Cases, Denies Summary Judgment

Andrew E. Russell, Oct. 27, 2025
Invalidity § 102(b)

Sale
Markus Spiske, Unsplash

Judge Williams issued a noteworthy SJ opinion last week in Cisco Systems, Inc. v. Ramot at Tel Aviv University, Ltd., C.A. No. 21-1365-GBW (D. Del.).

Cisco involves a DJ action where the accused infringer is challenging the validity of a patent based on the pre-AIA § 102 on sale bar, alleging that a a third party sold a product that embodied the claimed method more than one year before the patent application.

The patentee seemingly agreed with the basic facts, but moved for summary judgment of no invalidity on the theory that the the sales were "secret."

What does "secret" mean here? At least for the purposes of this motion, the parties assume …

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Dark Portends and Collateral Estoppel

Nathan R. Hoeschen, Oct. 23, 2025
Collateral Estoppel

As our AI overloads approach a dark singularity, I occasionally amuse myself by asking it increasingly obtuse questions just to see what it spits out. Today, for instance, I asked it for a cartoon depicting the abstract legal concept of collateral estoppel:

AI-Generated, displayed with permission

I'm not entirely sure the old fella hit the mark on this one, but I'm honestly not sure what I would come with that's any better. Another draw on the Turing test.

Anyway...

Judge Hall issued an interesting opinion on last week on collateral estoppel. The plaintiff in Ingenus Pharms., LLC v. Hetero USA, Inc., C.A. No. 24-1025-JLH (D. Del. Oct. 21, 2025), had several suits pending in different districts regarding …

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