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.
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 …
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 …
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 …
Ok, I'll admit, this post is getting a bit deep into the weeds of court procedure, even by our standards. But I thought it was interesting.
Last week we noted that the Court had canceled a trial to instead hold three additional days of hearings on summary judgment and other pending motions. I checked back in on the docket on that case, and the three hearings seem to have gone forward as planned.
Interestingly, the Court followed up after the final hearing and provided an update as to which of the summary judgment motions it is inclined to grant, and which it will deny:
ORAL ORDER: The Court, having now heard extensive oral argument on four of the pending summary judgment motions in this case, hereby advises the parties as follows, in order to assist them in planning ahead: (1) The Court’s current inclination is to GRANT Scale’s Motion for Summary Judgment of Non-Infringement of the Asserted Parse Claims, . . . to GRANT the remaining unresolved portion of Scale’s Motion for Summary Judgment of Invalidity of the Challenged Parse Claims, . . . and to DENY the remaining unresolved portion of Parse’s Motion for Summary Judgment #1: The Asserted Claims of the '442, '752, and '256 Patents are Invalid for Lack of Written Description and Enablement (i.e., as it relates to the asserted claims of the '442 and '256 patents) . . . . The Court is UNCERTAIN as to how it will resolve Parse’s Motion for Summary Judgment #2: The Asserted Claims are Invalid Under Section 112 for Failing to Claim Essential Features, . . . though it notes that it considered that motion, as briefed, to potentially have merit.; and (2) As discussed during the recent oral arguments, the Court will work to issue opinions regarding these motions in due course. It is of course possible that in finalizing its work on these opinions, the Court’s ultimate decision could turn out to be different from the inclinations expressed above.
Scale Biosciences, Inc. v. Parse Biosciences, Inc., C.A. No. 22-1597-CJB, D.I. 475 (D. Del. Oct. 14, 2025).
I've seen judges make similar comments in the past, and they tend to be accurate. Guidance like this can be really helpful in potentially resolving a case before the decisions issue.
It's not clear from the face of the order just how many claims remain, especially given that this case involves patent assertions in both directions. It will be interesting to see how the case proceeds from here, and whether the parties end up at trial.
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 …
The Court seems to be trending towards holding that patent claims dropped during the claim narrowing process are gone for good.
Yesterday, in Nexus Pharmaceuticals, Inc. v. Exela Pharma Sciences, LLC, C.A. No. 22-1233-GBW (D. Del.), Judge Williams held that a patentee cannot re-assert claims that it dropped prior to trial:
[T]his Court . . . finds that the case narrowing process in the instant action was even-handed and fair since it required Nexus to narrow its asserted claims and required Exela to narrow its asserted defenses. The fact that Nexus was unsuccessful at trial should not allow Nexus to get a second bite at the apple by now asserting those claims that …
This was meant to be more "Jaws" and less "get off my lawn you dang kids" but I can't be bothered to mess with the prompt anymore. A reminder that we are currently accepting applications for the official IP/DE cartoonistAI-Generated, displayed with permission
Today's strand in the tale is an abject lesson in the way certain cases can follow you around for years after they've ostensibly died. It comes to us by way of a pro hac motion, of all things. Filed without fanfare and totally unopposed, one would have expected it to be granted within a day or so.
Things went a little differently in WirelessWerx IP, LLC v. Tracki Inc., C.A. No. 25-799-CFC (D. Del. Oct. 17, 2025) where an unopposed pro hac motion sat dormant for a full 11 days until the Court issued this ominous Oral Order:
So that the Court may properly consider Plaintiff's application for the pro hac admission of William Ramey, it is HEREBY ORDERED that Mr. Ramey shall file with the Court no later than October 31, 2025 a sworn declaration in which he (1) identifies all the cases he has participated in or is currently participating in as counsel of record in this District and (2) avers whether he has ever been found by a court or state bar disciplinary body to have violated a rule, order, code, or norm of professional conduct. If Mr. Ramey has been found by a court or state bar disciplinary body to have violated a rule, order, code, or norm of professional conduct, he shall identify in the declaration the court or disciplinary body as the case may be and the date and nature of the finding and he shall submit with the declaration a copy of any order, opinion, or other document issued by the court or state bar disciplinary body in connection with that finding.
This is the first time I've seen an order like this. Me being a reporter (sorta), I looked to see what the lawyer's history was in the district. Unsurprisingly, an old Mavexar case popped up.
Counsel in question represented plaintiffs in a series of cases around the time of the Mavexar hearings, including Missed Call, LLC v. Freshworks Inc., C.A. No. 22-739-CFC. In that case, counsel failed to attend a scheduled in-person hearing. This led Chief Judge Connolly to order ...
Here at IPDE, our posts often fall into a few distinct categories. The most common type of post is "look at this interesting opinion that issued! Here is what happened, along with some context and meta-commentary."
(The second most common is probably some variation on "look at this Pennypack decision!" or "here is yet another post about redactions"—but we'll set those aside for now).
My favorite kind of post that we do, though, are our broader discussions that cut across multiple cases or judges, that address a fundamental District of Delaware practices, or that are just helpful tips for attorneys.
Hearings on motions for summary judgment in patent cases in the District of Delaware can vary in length, but they are typically measured in hours, rather than days.
That's why it was interesting to see the below order by Judge Burke in Scale Biosciences, Inc. v. Parse Biosciences, Inc., C.A. No. 22-1597-CJB (D. Del.) earlier this week.
In it, the Court cancelled a trial set to start Monday, and instead scheduled almost three full days' worth of hearings next week on six pending motions for summary judgment, plus two other motions:
ORAL ORDER: For the reasons discussed with the parties at last Friday’s hearing, the trial previously scheduled to begin on October 20, …
As a brief refresher, that case dealt with a claim that airSlate breached a settlement agreement resolving a trademark dispute. In filing the complaint, Inkit included an almost totally unredacted version of the settlement agreement, which had a confidentiality provision. Accordingly, airSlate counterclaimed for breach of the confidentiality provision.
Classic lawyer stuffAI-Generated, displayed with permission
At the time, the Court had ruled on summary judgment that all the elements of breach were proven except for damages (naturally a pretty tough thing to prove in this situation absent an actual settlement offer from another party asking for the …
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