One of my many litigation dreams is to develop an inescapable trap for my opponent. A no-win situation in which to prevail on infringement, they must lost validity or vice versa. In Insoluble dilemma that can only lead to their resigning the case.
AI-Generated, displayed with permission
On this note, I present to you the novel indefiniteness theory presented in Kaneka Corp. v. Designs for Health, Inc., C.A. No. 21-209-WCB (D. Del. June 16, 2025). The claims at issue there were your garden variety claims to a solution that specified at least X% of unobtanium, Y% of salt, etc. The claims did not specify the precise parameters under which one was to measure these percentages.
I saw this opinion last week and figured it would make for a nice lighthearted Friday post, but it got bumped to today when I decided to instead post about parties consenting (or not) to hearings and trial in E.D. Tx. So this is now a lighthearted Monday post.
Decades ago, former Chief Judge Robinson was known to occasionally include Princess Bride movie references in her opinions. See, e.g., Adkins v. E.I. du Pont de Nemours & Co., C.A. No. 95-315-SLR, 1995 U.S. Dist. LEXIS 17707, at *19 n.5 (D. Del. Nov. 21, 1995) (after a party called offering a more specific amended pleading …
We noted last month that there have been more assignments to visiting judges lately, including to visiting Judge Campbell Barker of the Eastern District of Texas.
Later last month, Judge Barker issued an order in 17 cases asking parties to let the Court know whether they consent to hearings or trial in the Eastern District of Texas:
Within 28 days . . . . each party shall file a notice stating whether the party consents to trial, see 28 U.S.C. § 1404(a), hearings, see Fed. R. Civ. P. 77(b), or both in the Eastern District of Texas, Tyler Division.
Yesterday was the deadline to respond for most cases. We put together some quick, rough statistics of …
Federal Courts is one of those classes that everyone has a tumultuous relationship with. My own professor on the subject continues to vex me by running a rival legal blog. Like Boat News before them, they shall be long forgotten to history whilst IP/DE reigns ascendant. Their name spoken only by those frightened few who stumbled upon their dark and damp remains.
Perhaps they can still pivot to videoNOAA, Unsplash
In any event, while issues of federalism, preemption, and the like do not often rear their heads in my practice, they often spawn an interesting opinion when they do. Case in point, Judge Fallon's opinion in Convatec, Inc. v. HR Pharms., Inc., C.A. No. 24-1248-RGA-SRF (D. Del …
Apparenly this is a picture of a large magnet, rather than a particle accelerator. Either way, it looks like someone left their binder in it.Brandon Style, Unsplash
We've talked about this before, but it was so long ago that I think it's worth pointing out again. Typically, left to their own devices, parties in patent cases will schedule initial contentions, then claim construction and a Markman hearing, and then final contentions.
In theory, the final contentions can then reflect claim constructions. In practice, it doesn't always work out that way, given that a Markman opinion may come out after the hearing anyway. If you want to have constructions before final contentions, you need to leave a fair …
Lawyers have the odd habit of speaking in our own, often pointless, patois. Why do we say inter alia? Ceteris paribus? De benne esse? Is it all to save the occasional word through the vagaries of Latin grammar? Is it a plot to make our work less comprehensible to the layman, and thus to puff ourselves up? Are we just word nerds?
Portrait of the author as a young manAI-Generated, displayed with permission
The issue is often worsened when legalese butts up again other technical jargon, as in a patent specification. Hence the constant claim construction battles over the "plain and ordinary meaning" of a crumfustulator among wild-animal podiatrists.
(Eds. note—should have saved the picture for the crumfustulator. You'll just have to use your imaginations for that one)
But what happens when the patent does use words with a plain meanings to both the expert and the novice? Would that intriguing state of affairs be a boon or a curse in a patent case?
Last week's opinion in Lab. Corp. of Am. Holdings v. Natera, Inc., C.A. No. 21-669-GBW (D. Del. June 5, 2025) (Mem. Order) shed some light on the question. The plaintiff there had a source code expert who opined on how the code operated, but explicitly did not provide any opinion on whether the relevant product infringed (that was done by a different expert who relied on the source code expert's report). Indeed, he testified that when he wrote the report he hadn't even read the Court's claim construction opinion. Nevertheless, his report used several common phrases contained in both the patents and the Court's Markman Order including "sequence reads" and "combining."
Worst place I've seen for a meet-and-confer? The courtroom, during a break in a trial -- when a juror from the trial wandered in.AI-Generated, displayed with permission
Delaware's Local Rule 7.1.1 requires, in cases that don't involve pro se parties, that the parties must have a verbal meet-and-confer before either party files a non-dispositive motion:
Except for civil cases involving pro se parties or motions brought by nonparties, every nondispositive motion shall be accompanied by an averment of counsel for the moving party that a reasonable effort has been made to reach agreement with the opposing party on the matters set forth in the motion. Unless otherwise ordered, failure to so aver may result in dismissal of the motion. …
Earlier this week, visiting Judge McCalla issued an order denying a motion to preclude a third-party factual declaration. Along the way, the Court addressed an ethics rule that should probably come up more often than it does.
As set forth by the Court, ABA Model Rule 3.4(f) precludes attorneys from requesting that third parties withhold relevant information from another party:
Model Rule 3.4(f) states a “lawyer shall not . . . request a person other than a client to refrain from voluntarily giving relevant information to another party.”
Arctic Innovations, LLC v. Edwards Lifesciences Corp., C.A. No. 23-158-JPM, at 4 (D. Del. June 4, 2025).
The Delaware Chapter of the Federal Bar Association held its annual lunch today and, as usual, the District and Bankruptcy Courts provided updates on the state of the courts. There wasn't a lot of new information this year, but here are some quick notes on some relevant items:
District court case filings here in D. Del. were down only 2%, compared to 14% nationally
Criminal filings were up 14%
There was a 7% drop in patent case filings, but we still have 39% of all ANDA cases
We are still the biggest court for competitor case filings
The Court strives to be fair and not partial to either plaintiffs or defendants
Entering into a stipulation is easy. You say we both agree to move this date or not assert that patent, and normally the court signs it and everyone goes about their business.
Getting out of a stipulation is harder.
AI-Generated, displayed with permission
If you're wondering just how hard, I present to you Judge Bataillon's opinion this week in Astellas Pharma Inc. v. Zydus, Inc., C.A. No. 20-1589-WCB (D. Del. May 30, 2025).
In that case Judge Bataillon resolved the rare "motion for relief from stipulation." The parties had long ago entered into a case narrowing stipulation in which the defendants dropped their obviousness and anticipation defenses.
Following a trial, then an appeal and a remand, the case was back in Judge Bataillon's hands, and was a bit more complicated. In the interim, it had been consolidated with related cases against other defendants and new claims from a related patent.
Because those other claims and other defendants were not bound by the prior stipulation, Lupin and Zydus argued that ...
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