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.
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, …
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?
Many (2) years ago, we (Andrew) wrote a (comparatively) riveting post about the Court denying a stipulation to extend redaction deadlines (insert witty parenthetical). In that post we speculated that the denial may have been due to either the number of documents affected (10) or the long length of the extension (6 weeks). No firm conclusion could be reached without greater powers of divination.
Yesterday we had another denial of a stip to extend redaction times in Qualcomm Inc. v. ARM Holdings PLC, C.A. No. 24-490-MN. D.I. 494 (D. Del. Nov. 17, 2025), that I think was a bit less mysterious.
The stipulation related to redacted SJ filings—openings, oppositions, and replies with all the accompanying papers.
The parties had already extended the deadlines for everything by several weeks when they filed a new stipulation seeking to move back the redaction deadlines for just the exhibits by a few more weeks.
I am no augur (that's Andrew's beat), and my powers to pierce the veil of the Court's reasoning are only of for mundane sort. But for my money, the key reason this stip was denied can be found in the following passage—I dare you to read it without your eyes glazing over:
the deadline for the parties to file redacted versions of their respective declarations and exhibits associated with opening (D.I. 410-413, 416-418, 422-424, 427-429, 432, 435-436, 439-440, 444-445), opposition (D.I. 448-450, 452, 454-455, 457, 459, 465-470), and reply (D.I. 479-480, 483, 485, 487, 491-492) summary judgment and Daubert papers is here by extended to December 1, 2025.
I tried to count how many docket items this is like 3 times before giving up. I can tell you it's on the order of 50, shoot me an email if you've got what you think is the real number (I promise I won't even try to check your math!).
This is a magnolia flower, apparently, if (like me) you were curious.Erda Estremera, Unsplash
I always think there is something to be learned when the Court is critical of the parties' briefing on an issue.
Today in Magnolia Medical Technologies, Inc. v. Kurin, Inc., C.A. No. 24-1124-CFC (D. Del.), Chief Judge Connolly had strong words for both parties in response to the briefing on a motion to strike.
In its motion, the accused infringer sought to strike the patentee's supplemental interrogatory response served almost five months after the close of fact discovery. The interrogatory response disclosed that one of the patentee's products practices the asserted claims, and the patentee served it three weeks after the FDA approved the patentee's request to market the product.
The accused infringer first argued that the Court should strike the supplemental interrogatory responses based on the language in Chief Judge Connolly's scheduling order requiring a patentee asserting practicing products to identify them in its infringement contentions:
Disclosure of Asserted Claims and Infringement Contentions. Unless otherwise agreed to by the parties, no later than 30 days after the date of this Order, a party claiming patent infringement shall serve on all parties a "Disclosure of Asserted Claims and Infringement Contentions." Separately for each opposing party, the Disclosure of Asserted Claims and Infringement Contentions shall contain the following information:
. . .
If a party claiming patent infringement wishes to preserve the right to rely, for any purpose, on the assertion that its own or its licensee's apparatus, product, device, process, method, act, or other instrumentality practices the claimed invention, the party shall identify, separately for each asserted claim, each such apparatus, product, device, process, method, act, or other instrumentality that incorporates or reflects that particular claim ("Embodying Instrumentality");
Chief Judge Connolly's Form Scheduling Order for Non-Hatch-Waxman Patent Cases in Which Infringement Is Alleged.
In moving to strike, the accused infringer alleged that the amended responses violated this provision. The Court called that "classic legerdemain" because ...
We posted late last month about how Judge Williams issued orders across at least 10 of his cases directing the parties to commence discovery pending resolution of motions to dismiss, and about how that can have a big impact on a case.
This week, visiting Judge Barker granted a "motion to commence discovery" and to compel the defendant to hold a Rule 26(f) conference (which normally triggers the start of discovery).
In the case, the defendant had moved to dismiss back in July. The Court did not issue an order directing the parties to start the scheduling process after the motion, which is not unusual.
According to the plaintiff, after the filing of the motion …
101 jurisprudence has bedeviled litigants for essentially forever. This lowly blog alone has more than 10 billion pages dedicated to 101 motions (or I don't know how to read the wordpress dashboard, that is also possible).
It says a lot about the blog that when I search our picture archives for "shrug" this is the first thing that comes upAI-Generated, displayed with permission
So, its a bit bonkers that there's still some fundamental questions about the 101 inquiry that have never been answered by the Federal Circuit. For instance, is there a jury right for underlying factual questions such as conventionality?
Judge Burke almost answered that question for us in Delaware last week in Stodge, Inc. v. Attentive Mobile, …
France—the place where these inventors will probably not be deposed.Gloria Villa, Unsplash
Last week in Pierre Fabre Medicament SAS v. Rubicon Research Private Ltd., C.A. No. 24-811-JLH-SRF (D. Del.), Judge Fallon ruled on a set of discovery disputes involving a motion to compel the patentee to make its inventors—who are employees residing in France—available for fact depositions under FRCP 30(b)(1).
In this case, it looks like the accused infringer has a an improper inventorship defense—which sounds like a very good reason to want to depose the inventors.
The interesting thing, to me, is that the patentee tried to fight these depositions at all. The Court easily (and unsurprisingly) batted away each of their objections.
Just a reminder that tomorrow is Veteran's Day, and that the District of Delaware is closed. To the extent you may have deadlines tomorrow that are calculated in days, consider FRCP 6, which states:
(a) Computing Time. The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time.
(1) Period Stated in Days or a Longer Unit. . . . include the last day of the period, but if the last day is a . . . legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. . . .
(3) Inaccessibility of the Clerk's Office. Unless the court orders otherwise, if the clerk's office is inaccessible . . . on the last day for filing under Rule 6(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday . . . .
Of course, this says nothing about deadlines set on a date certain by the parties or the Court. And even though the clerk's office will be closed, CM/ECF should continue to work just fine and does not restrict attorneys from filing things.
Side Note Regarding Court Holidays
Did you know that the Court typically closes for a couple of days each year that are not national holidays (e.g., Christmas Eve, Good Friday, and the day after Thanksgiving)? These show up on the Court's website as "Court Holiday" or "State Holiday." If your firm practices here often, it may be worth calendaring them so you don't forget.
Yesterday, visiting Judge Murphy issued an order resolving discovery disputes in A.L.M. Holding Company v. Zydex Industries Private Limited, C.A. No. 25-255-JFM (D. Del.).
The patentee had served a very broad interrogatory:
For each Accused Product, describe all research, development, testing, and manufacturing performed from January 1, 2013 to the present, including by identifying any dates, locations, persons involved along with their roles, the results of any testing, and any Documents (by Bates number) You contend provide evidence of any of the foregoing.
D.I. 117, Ex. F at 20. The accused infringer's response was just objections and a lengthy list of documents under FRCP 33(d). Id. at 21-28.
As a young lad, analytical chemistry was my jam. I liked big cool machines with lasers and flames. I liked dissolving things in acid. I liked anything that gave off a swirly gas when heated.
For that reason, I have a special empathy for the plaintiffs in Harmony Biosciences, LLC v. Lupin Ltd., C.A. No. 23-1286-JLH-SRF (D. Del. Oct. 27, 2025), and their poor, overworked experts.
The patent there was for a specific crystalline form of a drug. Typically, you would figure out this form via X-ray diffraction (XRD), which involves shooting X-rays at a crystal (typically powdered) from different angles. Via science too involved to get into here, you get a series …
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