A Blog About Intellectual Property Litigation and the District of Delaware


After Seventh Stipulated Extension, Court Asks What's Up

Andrew E. Russell, Dec. 15, 2025
Extension Stipulation

People think they just have to run out that clock...
Akram Huseyn, Unsplash

It's not uncommon for parties to find themselves in a position where, while discussing settlement, they end up filing a series of short (or not so short) extensions over a potentially lengthy period in order to give themselves time to negotiate.

Why not just stipulate to a full-on stay? The problem with a complete stay is that it removes all pressure to actually get the settlement done. I've seen cases where one side wanted to push the settlement forward, but would have had to essentially move to lift a stay to apply any kind of pressure. That's not where you want to be.

Sometimes, implementing the process as a series of stipulated extensions of a deadline, such as an answer deadline, can help maintain some pressure for each side to continue to negotiate while not actually requiring the parties to litigate. There is always the implicit threat that, if the parties can't agree on a further extension, the case will start right back up again.

As we've noted before, though, eventually the Court may want an update. The exact number of repeated extensions that a particular judge will tolerate likely depends on the circumstances, but it's not infinite.

We got another data point on this last week after the parties in a patent action before Judge Bryson filed 7 stipulations to stay an answer deadline. The Court granted the newest stip, but asked in the accompanying oral order for a status update within 4 days:

ORDER: This stipulation to extend time (D.I. 249 ) is granted. However, this is the seventh stipulation to extend time for defendants to file their answers and counterclaims with nearly identical language. Accordingly, parties are directed to file a joint status report with the court no later than December 12, 2025, at 5 p.m. Eastern Time setting forth what progress has been made toward settlement of this matter, what remains to be done, and when the parties expect this matter to be resolved. Signed by Judge William C. Bryson on 12/08/2025. (mpb) (Entered: 12/08/2025)

Colt International Clothing, Inc. v. Quasar Science LLC, C.A. No. 22-213-WCB, D.I. 250 (D. Del.).

On the fourth day, the parties filed a notice of settlement and promised to dismiss the case.

View

Judge Andrews Grants Reprieve After Party Accidentally Misses Notice of Appeal Deadline

Andrew E. Russell, Dec. 12, 2025
Notice of Appeal Litigation

Nightmare Birds
Alessandro Benassi, Unsplash

Missing a notice of appeal deadline is a nightmare scenario for an attorney. It's easy to imagine how it could happen: Final judgments can come at somewhat random times, and it's not a deadline that PACER flags for counsel. And, depending on how things go, it may be difficult or impossible to get the deadline extended. If that happens, that's it: your case may be over.

It looks like this nightmare almost played out in a recent District of Delaware case.

In Belden Canada ULC v. CommScope, Inc., C.A. No. 22-782-RGA (D. Del.), the Court entered a final judgment on October 14, 2025. The notice of appeal was due Thursday, November 13, 2025 …

View

The Doldrums

Nathan R. Hoeschen, Dec. 11, 2025
DED

I spent about an hour today looking for a new opinion to write about, all the while muttering to myself about how December's always a slow month for opinions, what with the many holidays and family get-togethers, to say nothing of the endless procession of time-themed ghosts with their wailing cries and clanking chains.

Humbug.

AI-Generated, displayed with permission

My search was ultimately fruitless, but it did inspire me to check if December actually is a slow month for opinions, or if that's just something that seems like it ought to be true.

So I ran the numbers through Docket Navigator, counting all the opinions on contested motions from the start of last December (2024). The data is horrid—frequently the same opinion will appear multiple times leading to unpredictable overcounting—but the errors should all be in the same direction so it should be good enough for the purposes of sating my curiosity.

As it turns out, my intuition was pretty spot on.

The three months with the fewest opinions are all big vacation or holiday months:

  • December - 69
  • June - 67
  • November - 65

The months with the most opinions were a bit more surprising (although they were all clustered fairly close in the top half)

  • August - 113
  • July - 114
  • February - 116

So there you go—if you happen to be a legal blogger looking to take a month off to avoid the torments of Christmases past, present, and future, December is a good choice. But you had best be back by the February rush.

View

District Court Holds That Defendant's Removal from Court of Chancery Weighs In Favor of Preliminary Injunction Against It

Andrew E. Russell, Dec. 10, 2025
Preliminary Injunction Removal

The case involved
The case involved "skylight caps"—insulated covers for skylights. Apparently Wal-Mart needs around a million of them. Walmart, CC BY 2.0

Yesterday, Chief Judge Connolly issued an opinion granting a preliminary injunction in Lennox AES Holdings LLC v. Benton, C.A. No. 25-575-CFC (D. Del.).

This contract case was originally filed in the Court of Chancery to enforce non-competition and non-solicitation provisions of an agreement related to the purchase of a business (or, at least, its assets).

The plaintiff is the business who purchased the assets. It filed suit in the Court of Chancery to stop the previous owner from selling certain kinds of products, which it alleged violated the agreement.

The defendant removed the case from the …

View

The Blogger As Detective

Nathan R. Hoeschen, Dec. 9, 2025
Mavexar Pro Hac

Writing a blog can be a bit like real journalism. More often it's a tedious exercise in easy jokes that amuse only the author, but, sometimes, there's a bit of sneaky sleuthing involved.

You tell me why he has human hands.
You tell me why he has human hands. AI-Generated, displayed with permission

Such is the case in today's post, which is an update to our earlier post on an unusually contentious pro hac motion.

For those who don't click links, the pro hac at issue was for an attorney involved in several of the infamous Mavexar cases. Judge Connolly issued sua sponte orders setting a hearing on the pto hac motion and requiring the attorney in question to submit "a sworn declaration in which he (1) …

View

Hope Springs Eternal: Magistrate Judge Rejects Argument That Her Own Ruling Was Likely to Be Found Clearly Erroneous

Andrew E. Russell, Dec. 8, 2025

It's surprisingly hard to pin down what the
Sigmund, Unsplash

When a magistrate judge makes a ruling on a non-dispositive issue in a case, and a party objects, the ruling controls and remains effective until the objection is resolved:

8. Effect of Magistrate Judge Orders and Recommendations. Until a District Judge has completed his or her review of an objection to a Magistrate Judge's order or ruling on a nondispositive matter, such order or ruling shall govern further proceedings.

That means that, when you object to a notice of deposition of two of your own inventors on the basis of "burden" (and other grounds), and your burden objection unsurprisingly fails, the depositions have to go forward—even if you then file written objections to the magistrate judge's ruling.

That is, of course, unless the Court grants a motion to stay. That's what a patentee tried last week in Pierre Fabre Medicament SAS v. Rubicon Research Private Limited, C.A. No. 24-811-JLH-SRF (D. Del.).

After the Court ordered the patentee to make its inventors available for deposition by December 5, the patentee filed objections under FRCP 72, and simultaneously filed a motion to stay the order pending resolution of the objections.

However, all motions in the case were referred to Magistrate Judge Fallon, the judge to whom they were objecting. And the standard for a stay under these circumstances requires satisfying several factors, one of which is a likelihood of success on the merits. The "merits" of the objections, here, require showing that the Judge's holding is "clearly erroneous or contrary to law."

As you have probably guessed, the judge ...

View

Judge Burke to Hold Single-Party, Single-Motion § 101 Day

Andrew E. Russell, Dec. 5, 2025
§ 101 Days § 101

Cupcake
Isabella Fischer, Unsplash

It has been a while since we have posted about them, but multiple D. Del. judges have held omnibus hearings to resolve multiple § 101 motions at once, called § 101 days.

Here is my co-blogger Nate's description of District of Delaware § 101 days from one of his posts a few years ago:

The 101 day has been the highlight of the Delaware patent law hearing calendar for many years now. It's an all-day no-holds-barred marathon where questions can come to any party at any time. And the best part is, you can look forward to a decision at the end of the day. It is our Super Bowl and our debutante ball all …
View

101 Year In Review

Nathan R. Hoeschen, Dec. 4, 2025
101

As we bid good riddance to another year, things tend to slow down in DE, with motions and briefs being stipped out to accommodate the many upcoming holidays. Rather than spend this time with our own families, we here at IP/DE like to spend the month going over various stats for the past year.

Adam Tinworth, Unsplash

Today we have a little rundown of 101 motions in the district.

For instance, you might be interested to know that the Court has decided 17 motions to dismiss based on 101 this year, not counting identical motions filed in related cases. (eds. note -- it occurred to me after compiling this data that it would have made sense to include …

View

Another Example of Why Counsel Needs to Read Granted Stipulations, Even If They Are Just "So Ordered"

Andrew E. Russell, Dec. 3, 2025

Legal practice in the District of Delaware tends to involve filing a lot of stipulations, particularly stipulations to adjust deadlines. Most often (but not always), these are "so ordered" shortly after they are filed.

Every once in a while, though, the Court will "so order" a stipulation but also modify the PDF to add a note or adjust something.

For practitioners, honestly, these modifications can be very hard to catch. If the Court types something into the "so ordered" PDF, in the same font as the original, it can be almost invisible unless you have a lawyer or paralegal do a careful line-by-line comparison of the original and the new PDF.

If the Court doesn't note it on the docket, …

View

"Plaintiff just kind of... ignores that part"

Nathan R. Hoeschen, Dec. 2, 2025
Pennypack

For years now I've been working on a double-dutch rhyme for the Pennypack factors. A Miss Merry-Mack for elderly nerds, if you will. It shall be my crowning achievement as a Delaware lawyer, and the work that I shall be remembered for.

AI-Generated, displayed with permission

But until that Glorious work is unveiled at the 2038 Bench and Bar conference, I can present you with just another Pennypack opinion for your portfolio. This one follows the recent trend of a slightly harsher application of the factors.

The Plaintiff in Agilent Techs., Inc. v. Axion BioSystems, Inc., C.A. No. 23-198-CJB, D.I. 456 (D. Del. Nov. 25, 2025) had responded to an interrogatory asking for which elements were not …

View
Older

Archive