A Blog About Intellectual Property Litigation and the District of Delaware


New D. Del. Case Filings Up This Month?

Andrew E. Russell, March 28, 2025
Congestion DED

I'm not sure why the AI image generator made the judge so much bigger than the traffic they are directing, but it seems somehow appropriate.
I'm not sure why the AI image generator made the judge so much bigger than the traffic they are directing, but it seems somehow appropriate. AI-Generated, displayed with permission

I've noticed, and heard from others, that it seems like there were a lot of new case filings in the District of Delaware this month.

I was curious if that's true, so I did some unscientific research based on how many PACER new-case e-mails I've received. So far, for March 2025, I've seen 127 of these. That's more than any of the 16 prior months, only one of which broke 100. And it's quite a bit more than the 49 I received in January, or the 74 I received in February.

March of last year (2024) was busy as well, with 97 such e-mails. But, even if we get no more filings today or Monday, this year's number will top last year's by more than 30%.

Of course, not all cases are the same. A litigation campaign by an NPE against many defendants is very different from a true competitor patent litigation. From a quick review, the filings this month look like a mix of both. And these include a mix of various other civil filings, not just patent cases. So it's hard to say just how big of an increase in actual workload it may be.

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A Different Sort of Redaction Story

Nathan R. Hoeschen, March 27, 2025
Redactions

Jeff Castellano

The blog has many stories about the perils of over-redaction. Time and again the Court has chastised the parties for attempting to redact quotidian bits of agreements and correspondence, noting that the Court is not a "Star chamber."

Today's case, Inkit, Inc. v. Airslate, Inc., C.A. No. 23-793-RGA (D. Del. Mar. 26, 2025), shows that it's also possible to redact too little. The parties thereby had a long-running dispute about trademark infringement which ultimately evolved into a dispute about whether the defendant had violated a settlement agreement which resolved an earlier case between the parties.

That settlement agreement—like literally every other one I've ever seen—contained a confidentiality provision. The issue that arose is that, in …

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Reminder: If You Bring a Discovery Dispute, the Local Rules Require You to Recite or Attach the Discovery

Andrew E. Russell, March 26, 2025
Local Rules

Danger Landmines
AI-Generated, displayed with permission

Local Rule 37.1 seems to often be forgotten. It requires a party bringing a discovery motion (which would include a discovery dispute) to recite or attach the discovery request or responses they are moving about:

Any discovery motion filed pursuant to Fed. R. Civ. P. 26 through 37 shall include, in the motion itself or in a memorandum, a verbatim recitation of each interrogatory, request, answer, response, or objection which is the subject of the motion or shall have attached a copy of the actual discovery document which is the subject of the motion.

D. Del. LR 37.1. Judge Burke's Guidelines for Discovery Disputes include a very similar requirement (and a requirement for the opposing …

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A New Perspective on Claim Narrowing

Nathan R. Hoeschen, March 25, 2025
Claim Narrowing

Claim narrowing is such a common issue in Delaware that this blog has at least 431 entries with the tag.

(Eds. Note—I did not actually count, but you can click on the tag on the side and scroll down to prove me wrong).

I told it to draw a nerd, but it actually kind of looks like me...must be something wrong with the algorithm.
I told it to draw a nerd, but it actually kind of looks like me...must be something wrong with the algorithm. AI-Generated, displayed with permission

Ironically this rich well of precedent can make it kind of hard to brief a dispute on claim narrowing. A dozen cases can be cited for any proposition you might want, which can make it hard to argue for one outcome over another -- especially to a judge that has seen similar disputes so many times before.

Judge McCalla's opinion last week in Aortic Innovations, LLC v. Edwards Lifesciences Corp., C.A. No. 23-158-JPM (D. Del. Mar. 20, 2025), was thus a breath of fresh air as he writes unencumbered by a wealth of his own words on the issue.

In the opinion (which cites to a truly remarkable number of prior Delaware orders on the issue), he dealt with 3 relatively common questions in the district.

First, the parties disputed whether the plaintiff should narrow from 31 asserted claims down to 18 or 15 (I'll let you guess who was proposing which). Judge McCalla went with 18, citing Judge Fallon's Order in Twinstrand Bioscis., Inc. v. Guardant Health, C.A. No. 21-1126-GBW-SRF (D. Del. Oct. 18, 2022), which stated that “a reduction to approximately 20 claims by the deadline for service of final infringement contentions” is “consistent with other case narrowing order[s] from [the District of Delaware].”

Next the parties ...

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You Really Need Specificity (and Probably a Client Declaration) to Redact a Transcript

Emily S. DiBenedetto, March 24, 2025
Declarations Transcript

file-ABPG4vkpMj9arLkK8vhpM3 (1)
AI-Generated, displayed with permission

Has it really been four years since Nate wrote this article on How to (Attempt to) Redact a Transcript? That post has aged like fine wine, and I still refer to it regularly as a refresher. Andrew has had a few follow-up posts as well. Redacting a transcript can be harder than it looks, as illustrated by Judge Burke's recent oral order.

In Astellas Pharma Inc. et al v. Ascent Pharmaceuticals, Inc. et al, C.A. 23-486, D.I. 166 (D. Del. Mar. 14, 2025), Judge Burke rejected a joint motion to redact portions of a transcript, citing failure to identify the confidentiality and anticipated harms of disclosure with specificity:

The Court has …
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When Can You Get a "Three-Judge District Court" for Your D. Del. Case?

Andrew E. Russell, March 21, 2025
Three-Judge District Court

Three Judges
AI-Generated, displayed with permission

In looking for something to write about today, I happened across Local Rule 9.2, which governs requests for a "Three-Judge District Court":

RULE 9.2. Request for Three-Judge District Court.
If a party believes a civil action or proceeding must be heard by a three-judge district court, the notation “Three-Judge District Court Requested” or the equivalent shall be included on the front page immediately following the title of the first pleading filed in such action or proceeding. The basis for the request shall be set forth in the pleading or in a brief statement attached thereto. The words “Three-Judge District Court Requested” or the equivalent on a pleading is a sufficient request under 28 U.S.C. § 2284. …
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It's The Fi-Nal Judgment (da da da daaa daaa)

Nathan R. Hoeschen, March 20, 2025
Final Judgment

Some among you will appreciate this joke. Others, baffled.
Some among you will appreciate this joke. Others, baffled. AI-Generated, displayed with permission

Judge Andrews had a fun opinion yesterday on an issue that does not come up very much at all.

The plaintiff in Pioneer Hi-Bred Int'l Inc. v. Syngenta Seeds, LLC, C.A. No. 22-1280-RGA (D. Del. Mar. 19, 2025) dropped their infringement claims after claim construction. Rather than dismissing the case, they moved for partial summary judgment and asked Judge Andrews to enter final judgment so that they could appeal the otherwise dispositive Markman order.

The defendant, however, wanted to proceed to an invalidity trial, and thus opposed the entry of a final judgment. Judge Andrews declined to enter final judgment, noting that allowing appeal …

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Lessons Learned The Hard Way

Nathan R. Hoeschen, March 19, 2025
Sanctions

Those of a certain age might recall the Animaniacs. It was an absurdist cartoon with a lot of bits, many referencing the likes of George Burns, Marlon Brando, and other popular public figures from 30 years prior that meant absolutely nothing to 10-year-old me.

And then he puts an orange slice in his mouth and chases the kid around the laundry until he dies! It's amazing!
And then he puts an orange slice in his mouth and chases the kid around the laundry until he dies! It's amazing! AI-Generated, displayed with permission

One of the bits was "good idea, bad idea," the basic premise of which is right there in the name. I thought it would be fun to revive it for this post on an especially doomed motion before Judge Connolly. Because, while there is much to be learned from the man who climbed Everest, the lesson is often more easily grasped from those unfortunate souls who line the path.

In that vein, I present the lessons that I have gleaned from last Monday's decision in Drake v. General Electric Co., C.A. No. 24-281-CFC (D. Del. Mar. 10, 2025).

Good Idea - Attaching Factual Support for Your Motion

As we've covered in the past, one of the best strategies for a discovery dispute—or any motion—is creating a detailed factual record on, for instance, the actual costs of complying with some request, the difficulty of access some set of documents, or the high cost of vendors. One can find innumerable examples of the Court noting that the losing side of the dispute had presented no more than "attorney argument." At least Judge Burke explicitly encourages the parties to attach affidavits or declarations to their discovery dispute submissions.

Bad Idea - Attaching Your Secretly Recorded Phone Calls

For those curious, there's some ambiguity ...

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Court Denies Summary Judgment Motion That Failed to Include Adequate Argument (and Violated the Page Limit)

Andrew E. Russell, March 17, 2025
Page Limits Summary Judgment

Green Frog
Andrew E. Russell, displayed with permission

Earlier this month we talked about the required structure for briefs in the District of Delaware. As to the required "argument" section, I said "We all know what this is." Maybe I was wrong.

An "Argument" Section That Wasn't

On Friday, the Court denied a motion for summary judgment for violating the local rule on briefing structure, because it's "argument" section failed to conform to the local rule on briefing structure, LR 7.1.3(c)(1)(f), and had exceeded the page limits for briefing. Roger P. Jackson, M.D. v. NuVasive, Inc., C.A. No. 21-53-RGA, D.I. 443 (D. Del. Mar. 14, 2025).

Basically, the patentee moved for summary judgment of infringement. But, rather than laying …

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Be Careful! Court Denies Daubert Motion That Sought to Strike Expert Report Rather Than to Exclude Testimony (and Included Incorrect Citations)

Andrew E. Russell, March 14, 2025
FRE 702 Daubert

Caution Warning
Bernd Dittrich, Unsplash

Today, Chief Judge Connolly issued a memorandum order in Stirista, LLC v. Skydeo Inc., C.A. No. 23-856-CFC denying a Daubert motion in part because it sought to strike the expert's expert report rather than excluding his testimony.

The Court actually agreed that the expert's testimony ought to be excluded under Rule 702—if only the moving party had filed a better motion:

In its briefing filed in support of the motion, Stirista argues that "Mr. Kelleher's opinions and conclusions related to market confusion should be excluded [under Rule 702] as unqualified, unreliable, and unhelpful to a trier of fact." . . . Having read the parties' briefing on this question, I'm inclined to agree with Stirista. …
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