A Blog About Intellectual Property Litigation and the District of Delaware


Look Readers, It's Been A Long Month

Nathan R. Hoeschen, April 23, 2026
101

I Know you, dear loyal readers, depend upon us for your very sustenance. A week with IP/DE is like a week without the sun, a summer without ice cream, a concert with no encore. The life of a patent lawyer is gray enough without the small indignity of a blog break.

But we have begun our halting return! Andrew reminded me that we were back today, and following some initial cursing that cannot be repeated on even the most bawdy of blogs, we have again taken up the mantle of infotainment resource.

Rejoice!

AI-Generated, displayed with permission

Today's case is a fun one. Plaintiff in BE Tech. LLC v. Google LLC, C.A. No. 20-622-GBW, D.I. 348 (D. Del …

View

Court Denies Summary Judgment on Marking: Plaintiff's Admission That Its Products "Embody" the Patent Is Not Enough

Andrew E. Russell, April 20, 2026
Marking

Maybe this slightly disturbing AI-generated arctic cat photo will remind us all to be careful with the Arctic Cat burden-shifting framework.
Maybe this slightly disturbing AI-generated arctic cat photo will remind us all to be careful with the Arctic Cat burden-shifting framework. AI Generated, displayed with permission

We're back! And we have a stack of opinions to look through. The first one that caught my eye is a summary judgment opinion from visiting Judge Murphy of the Eastern District of PA, in Monolithic Power Systems, Inc. v. Reed Semiconductor Corp., C.A. No. 23-1155 (D. Del.).

The Court addressed various summary judgment and Daubert motions by both sides, and denied them all. One denial in particular is worth discussing.

The accused infringer moved for summary judgment on pre-suit damages because the patentee failed to mark its products that …

View

Heads Up: Chief Judge Connolly Issues New Standing Order Changing Pro Hac Vice Procedures in His Cases

Andrew E. Russell, April 7, 2026
DED

Alert
Hugo Jehanne, Unsplash

Nate and I are still either traveling or heads-down in work, and we won't be back until April 20th. But this is an important update that I wanted to pass along, at least for Delaware counsel who frequently handle pro hac motions.

Today, Chief Judge Connolly issued a new standing order that changes the pro hac vice procedures in his cases. As set forth in the order, in addition to filing the usual pro hac motion, the movant must attach one of two new form certifications to the submission.

In the standing order, the Court recognizes (as we've mentioned) that attorney conduct in the District of Delaware is governed by the ABA Model Rules. Those …

View

A Blog Spring Break

Andrew E. Russell, April 1, 2026
IPDE

Spring Cherry Blossoms
Arno Smit, Unsplash

It's spring! The weather is great in Wilmington, the leaves are sprouting, and things are starting to bloom.

Nate and I will both be traveling next week, and very busy with case deadlines the week after that. So we're taking a blog spring break for two and a half weeks. We'll be back on April 20. Until then, enjoy spring!

View

After Plaintiff Relies on Declaration to Oppose § 101 Motion to Dismiss, Judge Andrews Dismisses Complaint and Invites Plaintiff to Move to Amend

Andrew E. Russell, March 30, 2026
Motion to Dismiss § 101

Fork in the Road
Jens Lelie, Unsplash

It's well known that, in evaluating a motion to dismiss, the Court is limited on what it can consider to, e.g. the four corners of the complaint, documents incorporated therein, and things the Court can take judicial notice of.

Rule 12 sets out that a Court can convert a motion to dismiss to an SJ motion if it wants to consider matters outside of the pleadings:

Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity …
View

Court Declines to Enhance Damages, Despite Jury's Willfulness Verdict

Andrew E. Russell, March 27, 2026
Willfulness Enhanced Damages

Dice
Mike Szczepanski, Unsplash

It's funny—for all the massive amounts of time spent litigating willfulness in patent cases, and the big evidentiary impact it can have, we don't get opinions addressing whether the Court will actually enhance damages all that often.

Yesterday, Judge Andrews issued a post-trial opinion addressing enhancement of damages after a willfulness finding. He applied the well-known Read factors to determine whether to enhance damages, noting that they are still persuasive even though they are no longer required after the Supreme Court's more recent Halo opinion.

Here's how the factors panned out, including whether they weighed in favor of or against enhancement of damages

  1. No copying by the defendant, weighs against
  2. Willfulness verdict, weighs in favor …
View

This Is Why We Can't Have Nice Things

Nathan R. Hoeschen, March 26, 2026
JMOL

I'll be honest, I'm busy today so its gonna be a short one.

Let's get this over with -- first a picture:

I cannot imagine how this fit into the post it was intended for
I cannot imagine how this fit into the post it was intended for AI-Generated, displayed with permission

Second, and last, the following amusing and instructive footnote from Judge Andrews' opinion on post-trial briefing in the long running case of Acceleration Bar LLC v. Amazon Web Servs., Inc., C.A. No. 22-904-RGA (D. Del. Mar. 26, 2026):

Defendant's Opening Brief of twenty-five pages (D.I. 332) raises at least seventeen arguments (D.I. 360). When I noticed a general absence of any attempt to explain how Defendant had preserved most of these arguments, I directed Defendant to submit a …
View

Another Un-Referral After the Parties' Fifth Discovery Dispute

Andrew E. Russell, March 25, 2026
Discovery Disputes Discovery Dispute

Undo Button
Sergi Kabrera, Unsplash

For the second time in two weeks, Chief Judge Connolly has un-referred a case from a magistrate judge after the parties filed their fifth discovery dispute.

Last time, he scheduled an in-person hearing (rather than the more typical remote hearing) and imposed costs and fees for the losing party. This time, he went further, and threatened a possible trial time penalty if either party takes an unreasonable position.

In Beckman Coulter, Inc. v. Cytek Biosciences, Inc., C.A. No. 24-945-CFC (D. Del.), Chief Judge Connolly had referred all disputes to Magistrate Judge Tennyson just over a year ago. Since then, the parties have brought five discovery disputes, spread out pretty evenly over time:

  • Feb. …
View

A Time of Discovery

Nathan R. Hoeschen, March 24, 2026
Hague

Although it's included on every scheduling order I've ever seen, the import of the close of fact discovery is not always obvious. Can you bring discovery disputes after? Do you need to update discovery responses after? What even is a fact?

The dinoaur with the briefcase will return next post. I thought this inscrutable photo was funny.
Véronique Debord-Lazaro, CC BY-SA 2.0

Judge Andrews had an order yesterday in Exelixis, Inc. v. Sun Pharm. Ind. Ltd., C.A. No. 24-1208-RGA, D.I. 188 (D. Del. Mar. 20, 2026), that sheds a bit of light on what you can't do near the close of fact discovery.

The defendant had filed a motion for international judicial assistance (Hagueling, I call it) last month, a couple weeks before the close of fact discovery. The Plaintiff opposed on the …

View

Don't Forget Whose Burden It Is

Andrew E. Russell, March 23, 2026
Burden Daubert

Which way?
Payam Moin Afshari, Unsplash

I don't think we ever did a post on this, but back in 2023, Federal Rule of Evidence 702 was amended to clarify that the burden of showing admissibility of an expert witness's testimony falls on the offering party (addition highlighted below):

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will help . . .

FRE 702 (2025).

This is consistent with a long-standing Third Circuit holding in In re Paoli R.R. Yard …

View
Older

Archive