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 all of his cases. Now, in addition to filing the usual pro hac motion and declaration, the movant must attach one of two new certifications to 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 rules prohibit partnering …
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!
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 …
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 Haloopinion.
Here's how the factors panned out, including whether they weighed in favor of or against enhancement of damages
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 forAI-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 …
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:
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?
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 …
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 …
Today's case gives us an example of a filing that failed to clear that bar in a rather interesting way.
AI-Generated, displayed with permission
The plaintiff in Tir Techs. Ltd. v. Comcast Cable Comms., LLC, C.A. No. 25-885-JCG, D.I. 48 (D. Del. Mar. 11, 2026), attached actual claim charts to their complaint. This is normally a positive for surviving a 12(b)(6).
The defendants, however, moved to dismiss because the claim charts actually charted infringement by third party Amazon Web Services. The charts and and complaint would then "include frequent variations of the following assertion that '[a] person of ordinary skill in the art would understand that the Defendants would use similar functionality with other CDNs, including the CDN provided by Comcast Technology Solutions.'" Id. at 9 (quoting claim charts). In addition, the complaint alleged that much of the information necessary to chart Comcast's product was uniquely within Comcast's control (a common argument from the Raindance line of cases).
Judge Choe Groves, found this insufficient and granted the motion to dismiss:
Plaintiff’s claim charts may explain how Amazon’s products infringe the Asserted Patents, but Plaintiff does not explain separately how the accused Comcast CDN infringes the Asserted Patents. Plaintiff’s repeated assertions regarding the knowledge of a hypothetical person of ordinary skill in the art are not factual allegations describing how Amazon’s products function similarly to the accused products, but are rather the type of “mere conclusory statements” that are insufficient to state a claim of infringement.
Hearsay can really trip attorneys up. The many hearsay exceptions may or may not apply to particular testimony, and those exceptions are spread across multiple rules that themselves may or may not apply. And there can be multiple layers of hearsay—with exceptions applying to some layers but not others.
Last week, in Agilent Technologies, Inc. v. Axion Biosystems, Inc., C.A. No. 23-198-CJB (D. Del.), the Court addressed double hearsay in the summary judgment context.
Agilent claimed false advertising by Axion. Axion moved for summary judgment of no false advertising. As part of ruling on that motion under the circumstances of the case, the Court looked at whether "actual customer deception" had occurred.
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.
