A Blog About Intellectual Property Litigation and the District of Delaware


Hope Springs Eternal: Magistrate Judge Rejects Argument That Her Own Ruling Was Likely to Be Found Clearly Erroneous

Andrew E. Russell, Dec. 8, 2025

It's surprisingly hard to pin down what the
Sigmund, Unsplash

When a magistrate judge makes a ruling on a non-dispositive issue in a case, and a party objects, the ruling controls and remains effective until the objection is resolved:

8. Effect of Magistrate Judge Orders and Recommendations. Until a District Judge has completed his or her review of an objection to a Magistrate Judge's order or ruling on a nondispositive matter, such order or ruling shall govern further proceedings.

That means that, when you object to a notice of deposition of two of your own inventors on the basis of "burden" (and other grounds), and your burden objection unsurprisingly fails, the depositions have to go forward—even if you then file written objections to the magistrate …

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Judge Burke to Hold Single-Party, Single-Motion § 101 Day

Andrew E. Russell, Dec. 5, 2025
§ 101 Days § 101

Cupcake
Isabella Fischer, Unsplash

It has been a while since we have posted about them, but multiple D. Del. judges have held omnibus hearings to resolve multiple § 101 motions at once, called § 101 days.

Here is my co-blogger Nate's description of District of Delaware § 101 days from one of his posts a few years ago:

The 101 day has been the highlight of the Delaware patent law hearing calendar for many years now. It's an all-day no-holds-barred marathon where questions can come to any party at any time. And the best part is, you can look forward to a decision at the end of the day. It is our Super Bowl and our debutante ball all …
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101 Year In Review

Nathan R. Hoeschen, Dec. 4, 2025
101

As we bid good riddance to another year, things tend to slow down in DE, with motions and briefs being stipped out to accommodate the many upcoming holidays. Rather than spend this time with our own families, we here at IP/DE like to spend the month going over various stats for the past year.

Adam Tinworth, Unsplash

Today we have a little rundown of 101 motions in the district.

For instance, you might be interested to know that the Court has decided 17 motions to dismiss based on 101 this year, not counting identical motions filed in related cases. (eds. note -- it occurred to me after compiling this data that it would have made sense to include …

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Another Example of Why Counsel Needs to Read Granted Stipulations, Even If They Are Just "So Ordered"

Andrew E. Russell, Dec. 3, 2025

Legal practice in the District of Delaware tends to involve filing a lot of stipulations, particularly stipulations to adjust deadlines. Most often (but not always), these are "so ordered" shortly after they are filed.

Every once in a while, though, the Court will "so order" a stipulation but also modify the PDF to add a note or adjust something.

For practitioners, honestly, these modifications can be very hard to catch. If the Court types something into the "so ordered" PDF, in the same font as the original, it can be almost invisible unless you have a lawyer or paralegal do a careful line-by-line comparison of the original and the new PDF.

If the Court doesn't note it on the docket, …

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"Plaintiff just kind of... ignores that part"

Nathan R. Hoeschen, Dec. 2, 2025
Pennypack

For years now I've been working on a double-dutch rhyme for the Pennypack factors. A Miss Merry-Mack for elderly nerds, if you will. It shall be my crowning achievement as a Delaware lawyer, and the work that I shall be remembered for.

AI-Generated, displayed with permission

But until that Glorious work is unveiled at the 2038 Bench and Bar conference, I can present you with just another Pennypack opinion for your portfolio. This one follows the recent trend of a slightly harsher application of the factors.

The Plaintiff in Agilent Techs., Inc. v. Axion BioSystems, Inc., C.A. No. 23-198-CJB, D.I. 456 (D. Del. Nov. 25, 2025) had responded to an interrogatory asking for which elements were not …

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PACER Multi-Factor Authentication Is No Big Deal—as Long as You Use a Password Manager (and Everyone Probably Should)

Andrew E. Russell, Dec. 1, 2025
CM/ECF PACER

PACER is moving towards multi-factor authentication (MFA). I've seen the popups, and I've heard from others that they have as well (although I've also heard that the rollout is being delayed due to "issues").

This new policy has induced some concerns among attorneys because, in many firms, multiple paralegals manage the PACER accounts for multiple attorneys, and use them for filings. The thought of juggling MFA codes under those circumstances sounds kind of horrifying.

But fear not! It's actually super simple if you are already using a password management app like 1Password, as many are.

You Should Probably Be Using a Password Management App Regardless

I am not a cyber-security expert by any stretch, but the common advice is …

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No Posts This Week, Happy Thanksgiving!

Andrew E. Russell, Nov. 24, 2025
IPDE

A turkey
Andrew E. Russell, displayed with permission

Happy Thanksgiving, all! In observation of the holiday—and because the Court doesn't usually issue a lot of decisions this week—we'll be taking some time off from the blog. Keep in mind, if you have cases here in the District of Delaware, that the Court is closed on both Thursday and Friday. See you next week!

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Judge Andrews Rejects Inevitable Disclosure Argument in Defend Trade Secrets Act Claim (. . . Back in September)

Andrew E. Russell, Nov. 23, 2025
Inevitable Disclosure Trade Secret Misappropriation

Secrets Barrel
AI-Generated, displayed with permission

The blog was on hiatus for a few weeks back in early September while I was out for a brief baby break, a period which included an important opinion from Judge Andrews. He granted a motion to dismiss a DTSA claim that relied on inevitable disclosure, holding that inevitable disclosure is not a cognizable harm under the DTSA:

I find that, to the extent FICO relies on the inevitable disclosure doctrine to plead threatened misappropriation, FICO has failed to state a claim under the DTSA. Dr. Bastert is bound by multiple agreements that bar him from disclosing FICO's trade secrets to his new employer. (D.I. 1 131). That Dr. Bastert only provided FICO with a …
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Staycation, All I Ever Wanted

Nathan R. Hoeschen, Nov. 20, 2025
Stay

Fun fact, I just spent about 20 minutes trying to get this post to go live, while the server gave me an obtuse error message. It was only after I got frustrated enough to actually restart my computer that I realized the problem was I had already used my stupid pun title in another post.

So I apologize for the inferior pun, it was all I had left to give.

Annie Spratt, Unsplash

Today's case is a rather unusual stay opinion in Sphere USA, LLC v. The Gillette Company LLC, C.A. No. 23-1093-CFC, D.I. 32 (D. Del. Nov. 6, 2025). We've mentioned in the past how IPR stays are becoming increasingly common, Ex parte reexam stays, …

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Don't Forget to Include a Witness Fee with That Deposition Subpoena

Andrew E. Russell, Nov. 19, 2025
Deposition Subpoena FRCP 45

Fun fact! If your attorney bills $450/hr in .1 hr increments and does nothing but take your $40 and hand it to a deponent, the bill to do so may cost you more than the $40 fee itself.
Fun fact! If your attorney bills $450/hr in .1 hr increments and does nothing but take your $40 and hand it to a deponent, the bill to do so may cost you more than the $40 fee itself. AI-Generated, displayed with permission

When it comes to IP cases in federal court, dealing with subpoenas can be a bit out of the ordinary.

It's not that they never come up. It's normal to have a couple of subpoenas per side in cases that make it to the close of fact discovery (e.g., for prior art, third party inventors, etc.), sometimes more. But not all cases make it to that stage, and many cases don't involve any subpoenas at all.

It also doesn't take much manpower to fill out a form subpoena. It's a task often given to newer associates or paralegals. More senior attorneys may not get involved in the service process at all, unless something goes wrong.

That said, it's easier than you might think for something to go wrong. The rules governing subpoenas are pretty archaic and weird compared to the rest of the federal rules. FRCP 45, for example, requires "tendering the fees for 1 day's attendance and the mileage allowed by law" when serving a subpoena.

Often this payment is handled by a process server. But, sometimes, they don't handle the payment. What happens then?

The subpoena may be ...

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