A Blog About Intellectual Property Litigation and the District of Delaware


Judge Bryson Tackles Presentation of Opposing Party's 30(b)(6) Testimony at Trial, Comes to Different Conclusion Than Judge Williams

Andrew E. Russell, Feb. 9, 2026
Deposition Subpoena 30(b)(6)

The Federal Rules of Evidence ought to prohibit the mid-afternoon playback of recorded deposition testimony.
The Federal Rules of Evidence ought to prohibit the mid-afternoon playback of recorded deposition testimony. AI-Generated, displayed with permission

Judge Bryson issued an opinion on Friday looking at a perennial trial question: can one side play the other side's 30(b)(6) testimony in its case-in-chief, even if the witness who gave the deposition testimony is available and testifying at trial?

When we talked about this question back in 2024, Judge Williams had held that, under the circumstances of a different case, a party could only play the other side's 30(b)(6) testimony for impeachment, not in the first instance. Jazz Pharmaceuticals, Inc. v. Avadel CNS Pharmaceuticals, LLC, C.A. No. 21-691-GBW, D.I. 545 (D. Del. Feb. 20, 2024).

Obviously, there is a big difference between offering deposition testimony in the first instance, and offering it only for impeachment. That was particularly true in the Jazz Pharmaceuticals case, where the oral order seemed to contemplate using the testimony for impeachment only of the specific designee who had testified.

(Given that 30(b)(6) testimony is the testimony of the party, not a specific witness, the opposing party could argue it should be available to impeach any of the party's witnesses.)

Judge Bryson's opinion came to the opposite conclusion than Judge Williams's order. He held that a party can play the opposing party's 30(b)(6) testimony if ...

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"It Does Not Require Much To Plead A Claim For Direct Patent Infringement"

Nathan R. Hoeschen, Feb. 5, 2026
Raindance

As we've mentioned previously, the 12(b)(6) motion based on a lack of details, is a dying beast. Only coaxed from its cave by the juiciest of prizes.

I wanted nuggets!
I wanted nuggets! mana5280, Unsplash

It's a simple fact, and it's the work of a blogger to cozy it up in a middling metaphor and accompanying stock photo.

[Eds. Note - I've been bugging Andrew to add functionality for Gifs, which I think will really elevate the blog. Consider this my formal request for the Court to implement the same feature on Pacer].

But one can trust Judge Andrews to put it in plain, quotable, terms.

[Eds. Note -- please let me know if you've ever quoted the blog …

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Court Declines to Move Markman Hearing Based on Expert Conflict, After Warning Parties That They "Should Have [Their] Experts Prepared to Be There."

Andrew E. Russell, Feb. 4, 2026
Expert Witness Scheduling

I never thought we'd get to re-use this image of someone frantically flying from Texas to Delaware (approximately...), but here we are.
I never thought we'd get to re-use this image of someone frantically flying from Texas to Delaware (approximately...), but here we are. AI-Generated, displayed with permission

It's important to pay attention to the things the Court tells you at the scheduling conference.

At a scheduling conference in Koninklijke Philips N.V. v. Quectel Wireless Solutions Co. Ltd., C.A. No. 20-1707-CFC-CJB (D. Del.), back in September, 2025, the Court set a date for the Markman hearing, and emphasized the importance of experts being there:

So let's do the Markman February 10th at 9:00 a.m. Now, I'm telling you now, you should have your experts prepared to be there.

Id., D.I. 141 at 2.

In the lead up to …

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Update on the Court's Refusal to Entertain a Stipulated Dismissal Prior to Filing of Pro Hac Motion

Andrew E. Russell, Feb. 4, 2026
Stipulation Pro Hac

Exit
Tarik Haiga, Unsplash

On Monday, I wrote about how the Court had refused to entertain a stipulated dismissal until the plaintiff's attorney filed a pro hac motion.

I wanted to provide an update. From the docket, it looks like the case has resolved. On Friday, the plaintiff filed an ordinary pro hac motion. The Court granted it this morning (Tuesday), without any issue, and then granted the stipulated dismissal. See Secure Matrix LLC v. Dress Barn Omni, Inc., C.A. No. 25-1530-CFC, D.I. 15 (D. Del. Feb. 4, 2026).

The Court did not require the parties to file a new stipulation, or to take any action beyond the filing of the pro hac motion.

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The Hearing Must Go On

Nathan R. Hoeschen, Feb. 3, 2026
Scheduling Hearing

Visiting Judge Barker issued an interesting order last week on a request to move a hearing date.

Judge Barker was assigned to Merus N.V. v. Xencor, Inc., C.A. No. 24-913-JCB (D. Del) last spring and issued his usual procedural order requiring the parties to notify the Court if they consented to holding hearings and/or trial in E.D. Tex., where he normally sits.

Micah Boswell, Unsplash

The defendant agreed to hearings in Texas, but not trial, while the plaintiff did not agree to hold either there. Eventually a motion to dismiss was briefed and in January Judge Barker scheduled a hearing in Delaware for February 17.

About 10 days after the Court set the hearing, the defendant sent in an unopposed letter asking to move the hearing due to "a previously scheduled and unmovable conflict in another case on that date" and suggesting a few other dates.

The Court, however, declined to move the hearing:

Defendant filed a letter with the court requesting that the hearing on defendant’s motion to dismiss, scheduled for February 17, 2026, be delayed. Doc. 50. That request is denied.
But, noting that defendant’s counsel practice at two large firms with many litigators, the court is amenable to defense counsel splitting argument amongst themselves. For example, one may provide a technology primer and another address safe-harbor immunity under 35 U.S.C. § 271(e)(1).

Id. at D.I. 51.

I think there's three main takeaways ...

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Court Refuses to Entertain Stipulated Dismissal Until Ruling on Plaintiff's Attorney's "Forthcoming" Pro Hac Motion

Andrew E. Russell, Feb. 2, 2026
Pro Hac Denial Pro Hac

[Update: As of Feb. 4, 2026, the plaintiff's attorney filed a pro hac motion, and the Court dismissed the case without issue.]

Cracked Window
Pavel Danilov, Unsplash

On Friday, in Secure Matrix LLC v. Dress Barn Omni, Inc., C.A. No. 25-1530-CFC (D. Del.), Chief Judge Connolly ordered that the Court will not be considering a stipulated dismissal with prejudice of a patent action until the plaintiff files, and the Court rules on, a pro hac motion for the plaintiff's attorney:

ORAL ORDER: The Court is not willing to entertain the parties' proposed stipulation before [plaintiff's attorney]'s "forthcoming" pro hac vice motion is filed and ruled upon. Ordered by Judge Colm F. Connolly on 1/30/2026. (mws) (Entered: 01/30/2026)

Secure …

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D. Del. Citation Myths and Legends

Andrew E. Russell, Jan. 30, 2026
KB Legal Writing

Are these ancient and inviolable rules from times of old? Nope—at least, not all of them.
Are these ancient and inviolable rules from times of old? Nope—at least, not all of them. Unknown

When I first started practicing in the District of Delaware, in the decade before last, I was told there are certain rules of citation that should always be followed in filings here. I've heard these repeated by others as well.

Most of these fall into the bucket of "we do it this way because the Court prefers it," which is—obviously—a great rule of thumb. But does the Court really prefer that the bar do these things?

Out of curiosity (and for the sake of a blog post), I took a look at some of the D. Del.-specific citation rules that I've heard and applied, and whether each of our sitting judges has been applying them lately.

My thought process here is that if a particular judge has a strong preference for one citation style or another, that will probably be reflected in their own written opinions (assuming no law clerks are going rogue and slipping in their own citation preferences).

Below are some of the rules I've heard of or applied myself, and my findings as to whether they seem to reflect current judicial preferences:

"Case numbers in D. Del. should be stated as 00-000-XYZ." True.

In PACER, and in some other districts, case numbers are commonly listed like this:

1:18-cv-01892-JDW-CJB

But in the District of Delaware, that case number would typically be stated in a brief or opinion in a shorter, cleaner form:

18-1892-JDW-CJB

As the District of New Jersey's website helpfully explains, the "1:" at the beginning of the longer-form number indicates a "division" within the District.

The District of New Jersey has three divisions, corresponding to its three courthouses. The District of Delaware, however, only has one courthouse and, to my knowledge, all D. Del. case numbers in PACER are preceded with "1:". The judges mostly omit this part of the case number.

The "-cv-" in the middle of the case number stands for "civil." You may also see "-cr-" for criminal and "-mc-" for miscellaneous cases. But, in D. Del., this is commonly omitted as well. I don't know why this is omitted, really, but I like it. It results in shorter case numbers and rarely if ever causes confusion.

Finally, the Court and practitioners usually omit the leading zeros, at least if the second number is above 99. Rather than "18-01892," they write "18-1892."

"Case numbers must always be abbreviated as 'C.A. No.'" A myth!

Some attorneys are particularly emphatic about this one, I've applied this rule myself.

But it looks like ...

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An Update On Sanctions In Rein Tech

Nathan R. Hoeschen, Jan. 29, 2026
Fees Sanctions

It's a sad day here at IP/DE. Over the past year, we've milked at an astonishing 8 posts out of the saga of Rein Tech, Inc. v. Mueller Systems, LLC. The case has everything, protective order violations, a plaintiff acting as his own expert, sanctions, fees. You can't blame us for covering it.

Well you could, but we won't hear you, since we're a blog.

AI-Generated, displayed with permission

But sadly, this week brought us one of the last developments we're likely to see in the case, with the Court awarding fees to the defendant incurred in bringing the various protective order disputes.

The defendant ended up seeking a little less than 40K in fees and costs. The plaintiff, …

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Court Grants § 101 Motion on Single Claim, Rejects Defendant's "Gambit" to Dismiss Entire Complaint Without Addressing Other Claims

Andrew E. Russell, Jan. 28, 2026
MTD § 101 Motion to Dismiss

Leon-Pascal Jc, Unsplash

Accused infringers often get hung up on the issue of representative claims in § 101 motions. Typically, a patent complaint will assert infringement of a patent, and offer specific details of how at least one claim from the patent is infringed. In the District of Delaware, at least, the patentee is free to later assert additional claims, or drop the original claim, without amending the complaint.

This can cause problems for accused infringers when they move to dismiss the entire complaint on § 101 grounds. Sometimes patents have a lot of claims, and the Court may not want to address the full scope of the claims one-by-one, when some of them—or, more likely, most of them—will …

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The Ripple Effect

Nathan R. Hoeschen, Jan. 27, 2026
Pennypack

Growing up, my grandparents lived on a lake in far northern Minnesota. Naturally, one of my favorite pastimes (during the 6 hours a year when the lake was not frozen) was throwing objects into the lake to see the splash. Stones, screws, turtles, siblings, turtles and siblings together in a move I called turtle-terror-soup, all were grist for the splash mill.

Andrew E. Russell, displayed with permission

Famously, once the splash settled and the turtles have returned to doing whatever they do, the waters turned calm once again. A passerby moments later would have no knowledge of the true chaos that had just passed. This is the way of true ripples.

Metaphorical ripples, however, are a bit trickier, as evidenced …

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