A Blog About Intellectual Property Litigation and the District of Delaware


Guest Post: Change Is A-Comin’

Dan Silver, Aug. 5, 2026
DED Local Rules

[Note from Andrew: Please welcome Dan Silver, Co-Managing Partner of McCarter & English's Delaware office and all-around great attorney! Like magic, we mentioned him and he appeared. Nate and I are still tied up, but we hope to return to our regular posting schedule soon. In the meantime, thank you Dan!]

A new Judge taking over his predecessor’s caseload.
A new Judge taking over his predecessor’s caseload. AI-generated, displayed with permission

I have often considered starting my own blog to compete with ipde.com, but unfortunately, deip.com is taken, so I will have to avail myself of the occasional opportunity to write a guest post on ipde.com until I can secure the proper domain rights. Many thanks to Andrew and Nate for the opportunity.

In what has otherwise been a fairly quiet summer in Delaware, the District of Delaware posted two big announcements in quick succession this week. First, on Monday, the Court issued a press release announcing that Magistrate Judge Christopher J. Burke will not seek reappointment as a Magistrate Judge when his current term expires in August 2027. Judge Burke will have served two full eight-year terms at that point, and is currently the longest-serving Magistrate Judge on the Court.

Judge Burke’s contributions to the Court are too numerous to list in a short blog post (especially given the paltry word limit that Andrew and Nate gave me), but certainly one of His Honor’s most impactful endeavors is leading the District’s Federal Trial Practice Seminar. Unique to the District of Delaware, the FTPS is a multi-week seminar for up-and-coming Delaware attorneys with between 5 and 10 years of practice experience to hone their trial skills—from opening statements to closing arguments and everything in between. The Court recruits practitioners to serve as instructors and mentors, and the participants have the benefit of feedback from the District’s Judges and Magistrate Judges, in addition to the practitioners. It is an invaluable program that has surely benefited generations of lawyers under many years of Judge Burke’s leadership. Many of the Delaware lawyers you will encounter as a frequent flier in our Court will ...

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Guest Post: When AI Hallucinations Become Criminal Contempt

Jen Welsh, June 23, 2026
Contempt AI

Attorney AI Large
Attorney AI Large AI-generated

[Note from Andrew: Please welcome Jen Welsh, former prosecutor in the U.S. Attorney's Office in the District of Delaware! Jen is visiting to write our first-ever guest post, below—thank you, Jen!]

I’m Jen Welsh. I was a prosecutor in the United States Attorney’s Office in Delaware for many years, and now I’m a partner at Freeh Sporkin & Sullivan, a firm that handles investigations, white collar defense, and complex litigation matters.

You’ve probably seen me in the courthouse, kicking you all out of a courtroom so that we could handle a sentencing on a break in the middle of your Markman hearing. When I saw that a District of Delaware civil case was turning …

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A Blog Triumphant, and Our First Guest Post!

Andrew E. Russell, June 23, 2026

We used this same image last time we had to crawl out from under a mountain of unresponded-to e-mails from a series of trials, but it feels accurate.
We used this same image last time we had to crawl out from under a mountain of unresponded-to e-mails from a series of trials, but it feels accurate. Andrew E. Russell, CC BY 2.0

Ok, I admit, sporadic posting mode has been a bit of a failure. Nate and I handled a lead counsel competitor patent jury trial earlier this month (we won!) and there was truly zero time for any blog posts. Since then, we've been taking it slow and digging out from under massive piles of unresponded-to e-mails and other work. We have some vacations and another trial coming up in the next couple of weeks—so full-time blog posting will return soon, but not quite yet.

Until then, …

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Sporadic Posting Mode Engaged

Andrew E. Russell, May 9, 2026
IPDE

I'm currently at the
I'm currently at the "remember how fun it was to go outside?" stage. Heike Trautmann, Unsplash

When it comes to things like writing a blog, having hobbies, or "seeing any one of your six kids for more than five minutes," big federal court trials can be rough.

Nate and I are deep in the weeds preparing for multiple trials in the next two months. I don't want to shut the blog down entirely for that long, but we also can't realistically maintain our typical roughly-one-post-per-day cadence. So we're going to try something new: sporadic posting mode. Until we're on the other side, we'll have fewer posts each week, but we will still aim to keep the blog going with the most critical and interesting items that come up. Wish us luck!

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Court Denies Sword-and-Shield Argument for Waiver of Privilege Related to Estoppel Defense

Andrew E. Russell, May 9, 2026
Privilege Estoppel

Basically, if it's just a shield and no sword, you're good to go.
Basically, if it's just a shield and no sword, you're good to go. AI-generated, displayed with permission

When it comes to privilege disputes, an argument that the opposing party is "wielding privilege as both a sword" and a shield tends to be pretty effective. But it has its limits. As visiting Judge Murphy found in a decision last month, the opposing party actually has to be doing something more than simply using privilege as a shield.

In A.L.M. Holding Co. v. Zydex Industries Private Ltd., C.A. No. 25-155 (D. Del.), the defendant asserted an equitable estoppel defense to patent infringement, arguing that it reasonably relied on plaintiff's conduct, which misled them to believe that they …

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Court Strikes Undisclosed References from Motivation-to-Combine Analysis

Andrew E. Russell, May 4, 2026
Invalidity Background References

This is where we hide the prior art.
Stefan Steinbauer, Unsplash

On Friday, visiting Judge Choe-Groves issued an order addressing a defendant's use of new references in a motivation-to-combine analysis, which it had not disclosed in its invalidity contentions or on the deadline for election of prior art references. It instead disclosed the references for the first time in its expert report on invalidity.

The case involved a scheduling order using Chief Judge Connolly's form, which includes a single round of invalidity contentions and a deadline for election of references, and specifically requires good cause to supplement.

Judge Choe-Groves found that the late disclosure of certain "background" references was acceptable, but rejected the idea that references used in a motivation-to-combine analysis fall into that category:

The Court …
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Chief Judge Connolly Brings His SJ & Daubert Ranking Procedures to His Non-Patent Cases

Andrew E. Russell, May 1, 2026
Ranking Summary Judgment

If only we'd ranked the 4th one higher...
If only we'd ranked the 4th one higher... AI-generated, displayed with permission

Chief Judge Connolly updated his form non-patent scheduling order today.

If, like me, you're wondering what changed: worry not! We did a comparison. The main change, other than minor wording and formatting revisions, is that his procedures for ranking summary judgment and Daubert motions now apply to non-patent cases.

This makes sense—we see plenty of rather large and heavily-litigated competitor cases that are not patent cases here in D. Del., including copyright and trade secret cases. These can involve multiple summary judgment motions just like patent actions.

Interestingly, Chief Judge Connolly did not import the page limits for summary judgment motions into his non-patent scheduling order. In …

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Judge Connolly Denies Pro Hacs For Failure To Comply With New Standing Order

Nathan R. Hoeschen, April 30, 2026
Pro Hac

Earlier this month Andrew wrote a post on Judge Connolly's new standing order requiring pro hac applicants to state whether a non-lawyer owns a stake in their firm.

This will always be the picture when no picture makes sense
This will always be the picture when no picture makes sense AI-Generated, displayed with permission

We're posting this as a reminder (and because I am too busy to do a real post) because yesterday Judge Connolly denied a pro hac motion for failure to comply:

ORAL ORDER re 6 MOTION for Pro Hac Vice Appearance of Attorney Danielle Vincenti Tully, Michael B. Powell, John T. Augelli and Michael A. Russo, for whom payment has been received. The motion is DENIED without prejudice to renew for failure to comply with Judge Connolly's Standing Order Regarding Pro Hac Vice Motions.

I assume that this will be the last such denial, now that the preeminent DE legal blog has flagged the issue for the second time. (take that boat news)

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"[S]imply saying the communications were protected by Rule 408 does not mean they may be sealed."

Andrew E. Russell, April 29, 2026
Sealing FRE 408

AI image generation is getting really good.
AI image generation is getting really good. AI-generated, displayed with permission

Federal Rule of Evidence 408 is kind of a funny thing. It says that settlement conduct and discussions are inadmissible "to prove or disprove the validity or amount of a disputed claim" or for impeachment.

That's significant, but it leaves open a lot of potential uses of settlement communications throughout the case—not to mention in later cases, potentially on different claims. The rule explicitly sets forth that such communications and conduct are still admissible for other purposes:

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a …
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Are Billing Rates Secret?

Nathan R. Hoeschen, April 28, 2026
Fees Redactions

Judge Wolson issued an interesting opinion last week on an issue I hadn't seen come up before—are my fees a secret?

Don't at all remember why I originally had this created, but I think it works
Don't at all remember why I originally had this created, but I think it works AI-Generated, displayed with permission

The defendant in Imaginear, Inc. v. Niantic, Inc., C.A. No. 24-1252-JDW (D. Del. Apr. 23, 2026) moved for fees following final judgment. In support of that motion, it included an attorney declaration that generally explained that the attorneys had agreed to some sort of discounted rates and that disclosing those rates, as well as the monthly billing amounts from which those rates could be determined, could harm both defendant and the attorneys in future negotiations.

I was a bit surprised to see this motion as I often see the rates filed publicly, but perhaps I simply don't notice the ones that are redacted silently under the usual Delaware procedures for redactions. In any event, the thrust of Niantic's motion was that this case was different from most because it involved a negotiated discount (and possibly some other sort of "alternative" arrangement -- I can't tell from the briefing).

The court granted the motion in part, allowing Niantic to redact the discounted rates, but not ...

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