Photograph showing the proper procedural mechanism to undo subject matter jurisdiction in this instance.Delorean Rental, Unsplash
In CogniPower LLC v. Fantasia Trading LLC, d/b/a AnderDirect, C.A. No. 19-2293-JLH-SRF (D. Del.), a patent suit, the Court granted a third-party supplier's motion to intervene back in 2020. Since then, based on the docket, the patentee has been trying to dismiss the intervenor from the case.
Today, the Court issued its order denying a motion to dismiss by the patentee, and it addresses to interesting issues regarding an effort to limit the scope of the Court's judgment based on subject matter jurisdiction.
First, the patentee tried to dismiss the claims based on an argument that, five years after …
Pictured: a francophone. also, its good to know that chatgppt doesn't know how a rotary phone works (4,b,c,?)AI-Generated, displayed with permission
As a devoted francophile (and middling francophone), I'm ever intrigued by the concept of rank. One cannot watch the plays of Moliere or the films of Renoir without getting a sense for the pervasive role that rank plays in every aspect of society, amongst both the proud and the petty.
This of course brings me to the place I most commonly rub against the rigid hierarchies of rank—summary judgment motions. Long time readers will of course be aware that Judges Connolly and Williams require litigants to rank their summary judgment motions, so that once one is denied, the …
We're back! It looks like a fair number of opinions and orders have accumulated during out hiatus, and we're looking forward to digging into them (seriously—the hardest part of writing the blog is finding things to write about).
Last week, Judge Williams issued a fairly lengthy opinion on a motion to compel production of documents from before the Default Standard's 6-year discovery provision.
For those who are not aware, the District of Delaware's Default Standard limits "follow-up" discovery in patent actions, with some exceptions, to a period of six years prior to the complaint (tracking the limitation on patent damages under § 286) absent a showing of good cause:
Absent a showing of good cause, follow-up discovery shall be limited to a term of 6 years before the filing of the complaint, except that discovery related to asserted prior art or the conception and reduction to practice of the inventions claimed in any patent-in-suit shall not be so limited.
This can be a real limitation on discovery for cases in which the Default Standard applies (which is not all cases). And while parties occasionally reach the Court with a dispute where one party is trying to make the required showing of good cause to get around it, it's not as common as you might think.
But it is an issue that applies to just about every patent case, so it is great to see a detailed opinion from the Court about it. In Roche Diabetes Care, Inc. v. Trvidia Health, Inc., C.A. No. 24-668-GBW (D. Del. July 9, 2025), Judge Williams addressed a motion to compel production of various discovery prior to the six-year cutoff under the default standard.
The Court addressed four categories of documents and interrogatory responses, and ordered production of most of them. The Court ordered production of:
Development documents
First sale / demonstrate / manufacture / launch documents
Documents regarding knowledge of the asserted patents, and the plaintiff's products and methods
The Court denied the motion to compel production as to:
Damages and reasonable royalty documents
The Court's reasoning for each category provided some useful insights.
I always find that it can be helpful to see how judges rule on things, even if the rulings are kind of fact-specific, because it can still give you a sense of how they will rule on other things. (Thus, we have a blog.)
In Attentive Mobile Inc. v. Stodge, Inc., d/b/a Postscript, C.A. No. 23-87-CJB (D. Del. Jun. 12, 2025), Judge Burke addressed a Daubert motion to preclude a damages opinion that included revenue from non-infringing functionality in its royalty base, on the basis that it failed to apportion damages.
We missed this when it came out, but Judge Fallon issued an opinion in March that addressed whether a defendant could evade service of process by, he claims, not opening the door when the process server tried to serve him.
In Pelham v. Vbit Techs. Corp., C.A. No. 23-162-JLH-SRF (D. Del.), a securities action, the plaintiff filed a Return of Service from their process server stating that they had served one of the defendants by personally delivering the complaint to the defendant at home—but the defendant disagreed:
On March 17, 2023, Plaintiffs filed a Return of Service, of the original summons and complaint. (D.I. 6) The affidavit of the process server states that on March 7, 2023, he personally served Jin Gao at his residence. . . . Subsequently, on April 5, 2023, Gao's counsel emailed Pelham's counsel, who filed the Return of Service, informing counsel that Gao was not personally served. . . . Gao's counsel did not receive a response from Pelham's counsel.
Id., D.I. 70 at 13.
The defendant submitted what he claimed was doorbell camera video to rebut the claim that he was served—but the Court did not consider that video, because ...
I saw this opinion last week and figured it would make for a nice lighthearted Friday post, but it got bumped to today when I decided to instead post about parties consenting (or not) to hearings and trial in E.D. Tx. So this is now a lighthearted Monday post.
Decades ago, former Chief Judge Robinson was known to occasionally include Princess Bride movie references in her opinions. See, e.g., Adkins v. E.I. du Pont de Nemours & Co., C.A. No. 95-315-SLR, 1995 U.S. Dist. LEXIS 17707, at *19 n.5 (D. Del. Nov. 21, 1995) (after a party called offering a more specific amended pleading …
We noted last month that there have been more assignments to visiting judges lately, including to visiting Judge Campbell Barker of the Eastern District of Texas.
Later last month, Judge Barker issued an order in 17 cases asking parties to let the Court know whether they consent to hearings or trial in the Eastern District of Texas:
Within 28 days . . . . each party shall file a notice stating whether the party consents to trial, see 28 U.S.C. § 1404(a), hearings, see Fed. R. Civ. P. 77(b), or both in the Eastern District of Texas, Tyler Division.
Yesterday was the deadline to respond for most cases. We put together some quick, rough statistics of …
Federal Courts is one of those classes that everyone has a tumultuous relationship with. My own professor on the subject continues to vex me by running a rival legal blog. Like Boat News before them, they shall be long forgotten to history whilst IP/DE reigns ascendant. Their name spoken only by those frightened few who stumbled upon their dark and damp remains.
Perhaps they can still pivot to videoNOAA, Unsplash
In any event, while issues of federalism, preemption, and the like do not often rear their heads in my practice, they often spawn an interesting opinion when they do. Case in point, Judge Fallon's opinion in Convatec, Inc. v. HR Pharms., Inc., C.A. No. 24-1248-RGA-SRF (D. Del …
Apparenly this is a picture of a large magnet, rather than a particle accelerator. Either way, it looks like someone left their binder in it.Brandon Style, Unsplash
We've talked about this before, but it was so long ago that I think it's worth pointing out again. Typically, left to their own devices, parties in patent cases will schedule initial contentions, then claim construction and a Markman hearing, and then final contentions.
In theory, the final contentions can then reflect claim constructions. In practice, it doesn't always work out that way, given that a Markman opinion may come out after the hearing anyway. If you want to have constructions before final contentions, you need to leave a fair …
Earlier this week, visiting Judge McCalla issued an order denying a motion to preclude a third-party factual declaration. Along the way, the Court addressed an ethics rule that should probably come up more often than it does.
As set forth by the Court, ABA Model Rule 3.4(f) precludes attorneys from requesting that third parties withhold relevant information from another party:
Model Rule 3.4(f) states a “lawyer shall not . . . request a person other than a client to refrain from voluntarily giving relevant information to another party.”
Arctic Innovations, LLC v. Edwards Lifesciences Corp., C.A. No. 23-158-JPM, at 4 (D. Del. June 4, 2025).
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