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!
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 prettyeffective. 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 …
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:
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 …
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 senseAI-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)
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 …
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 worksAI-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 ...
In an order on Thursday in Vifor (International) AG v. Apotex Inc., C.A. No. 25-211-WCB (D. Del.), visiting Judge Bryson set forth his views on stays in an ANDA action where the stay will impact the trial date in light of the 30-month stay and the time needed for post-trial briefing:
Apotex stated that the parties are engaged in settlement negotiations and asked that the proceedings be stayed “to allow the parties to focus on negotiating settlement” and to order that the parties pursue mediation “to resolve this matter efficiently.” . . . Apotex’s request for stay is denied. The fact that the parties are contemplating mediation suggests to the court that settlement, …
The patent generally relates to a data cable like this (shown in cross section).U.S. Pat. No. 9,991,030
I admit that, before today, I had no idea how to distinguish between an "artifact noun" and a "natural kind noun." Nor did I know how such knowledge could ever be relevant to my interests. But now I do!
In ruling on claim construction in Belden Inc. v. CommScope, Inc., C.A. No. 22-783-RGA (D. Del.), Judge Andrews ended up delving into grammar to determine whether the term "non-conductively shielding" was indefinite.
The patent at issue related to high-performance data cables (for example, Cat 6A cables used for 10 GB Ethernet). The patent describes that these cables can have four …
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. Apr. 16, 2026) had a rocky road to summary judgment. At the motion to dismiss stage --long long ago now -- they'd faced a series of 101 challenges to the patent in suit. In these proceedings, Judge Stark had twice found that one of the claims in the patent in suit was representative and that it failed Alice at step one for being directed to an abstract idea.
The motions were ultimately denied however with the court finding that fact issues precluded a decision on step 2. Defendants ultimately filed IPR's on all of the patents and the case was stayed for some time. The PTAB then invalidated all but one claim of one of the patents -- not the one that the court had previously found representative.
The case resumed and the parties cross-moved for summary judgment on 101 grounds. The plaintiff argued that the court's prior holding that the now-invalid claim was representative, and that all the claims failed step 1, was no longer binding now that the claim was out of the case.
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
