The service rules are relics of a different time. A time when New York and Vermont would occasionally shoot half-heartedly at one another over the land between the Connecticut and Hudson rivers -- an area now mostly known for being the world's most boring drive.
Welcome to the Merritt Parkway! It's ever so long!AI-Generated, displayed with permission
In any event, the requirements remain and thus we are occasionally forced to make some poor courier drive to someplace terrible (see above) to drop off a paper packet. That's rule 4, for ya.
But the rules get a bit squishy if your defendant is foreign-based. 4(f)(1) initially suggests you might want to use the Hague convention, which is a great idea …
Try not to forget that jury demand.AI-Generated, displayed with permission
Other than in ANDA cases, most (but not all) patent cases these days involve a demand for jury trial. FRCP 38 sets a deadline for requesting a jury trial within 14 days after the last pleading directed to the issue is served:
On any issue triable of right by a jury, a party may demand a jury trial by . . . serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served; and . . . filing the demand . . . .
This rule includes a few interesting things, just from the text:
It sets out the demand requirement by issue, not by action
It says parties "may" include the jury demand in a pleading, not that they must
A party gets 14 days after service of the "last pleading directed to the issue" to serve a jury demand
District of Delaware Local Rule 38.1 also covers this issue, and defines the acceptable language for a jury demand in a pleading:
If a party demands a jury trial by endorsing it on a pleading, as permitted by Fed. R. Civ. P. 38(b), a notation shall be placed in the caption of the pleading stating "Demand For Jury Trial" or the equivalent. This notation will serve as a sufficient demand under Fed. R. Civ. P. 38(b).
It has been pointed out that many of my references are so oblique as to be indecipherable. Rather than improve the practice, I have resolved to simply include a footnote at the bottom of each post, lest they go unappreciated.
The best and worst artists please themselves first.
AI-Generated, displayed with permission
Anyway, today's case is Cosmokey Solutions GmbH v. Duo Security, Inc., C.A. No. 18-1477-JLH-CJB (D. Del. May 19, 2025).
The defendant there brought a Daubert motion to preclude the plaintiffs' experts testimony on the grounds that he offered a "legally wrong construction" of one of the claim terms. Naturally, this motion was brought long after the Court issued its Markman order. Neither party had proposed …
This is basically what I imagine when I hear about a "corporate deponent"Chris Barbalis, Unsplash
On Friday, the Court unsealed an interesting Judge Bryson opinion on 30(b)(6) depositions.
As we've noted, Rule 30(b)(6) now parties to meet-and-confer prior to the deposition to resolve the scope of the testimony. But the rules leaves out the exact parameters of how and when parties object, and what happens when they do.
Judge Bryson's opinion addresses an instance where a responding party objected to a 30(b)(6) notice, designated witnesses on only portions of the noticed topics, and offered to meet-and-confer (an offer the noticing party never accepted).
As promised, the deponent was prepared to testify on only a portion of the …
When it comes to summary judgment and Daubert motions, the local rules here in D. Del. set a limit for the number of pages, but don't set a limit for the number of motions. Our judges' form scheduling orders for patent actions address this, and set length limits for brifing dispositive motions (and sometimes for combined SJ/Daubert briefing).
Sometimes, however, parties end up with scheduling orders that place no limits on the number of motions. In that case, in theory, a party can file as many SJ motions as it wants under the rules, with 20 pages for each motion. In practice, that may not pan out so well.
I don't think I'm speaking out of turn when I say that snap removal is a patently ridiculous concept. Whatever lawyer first decided to float this argument deserves all of the praise I can heap upon them, both for the inventiveness and sheer audacity. In fact, lets take a moment to snap for them now:
Some say he's still writing that brief. . .AI-Generated, displayed with permission
In any case, snap removal has been the law in the Third Circuit since Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 152-53 (3d Cir. 2018), where the Court held that the plain language of the removal statute required snap removal even though the "result may be peculiar." Id. at 153-54.
But real snappies will be aware of the next big thing—"super snap" removals, which the Third Circuit has yet to address. A super (duper) snap removal (expialadocious) is where the plaintiff electronically submits the complaint, the defendant becomes aware of it through their docket-monitoring service of choice, and then removes the case before the filing has even been accepted by the clerk.
Snappy.
The Ninth Circuit—the first to address this growing class of removals—held that they "had a foundational defect—the absence of an existing civil action in state court—that rendered them not just defective but legally null and void." Casola v. Dexcom, Inc., 98 F.4th 947, 963 (9th Cir. 2024).
Judge Noreika had a decision yesterday on a middle-ground between regular and snap removal, which I have chosen to call semi-super snap removal (expialadocious). The plaintiff in Higgins v. Novartis Pharms. Corp, C.A. No. 25-245-MN (D. Del. May 14, 2025) filed ...
This is not the level of disclosure at issue here.AI-Generated, displayed with permission
Most readers who are patent litigators will know this already, but a "claim chart" is a table with two columns. The column on the left lists claim elements, and and the column on the right lists the portions of something—typically a product, system, or disclosure—that meets the elements on the right.
The chart shows the reader how the thing (whatever it may be) meets the elements of a claim or claims.
Detailed claim charts sometimes include figures with arrows pointing to the relevant claim elements, quotes of relevant text (if applicable), and/or a narrative description of how the cited material meets the element.
Sham litigation is a doctrine that I believe lives on largely because it's fun to say. Lawyers like nothing better than to stand up in court and point out that the whole case is a sham, a phony, a baseless hullabaloo.
Classic hullabalooAI-Generated, displayed with permission
Of course, the other side would rather their claims not be constantly accompanied by the word sham, and thus motions to dismiss are fairly common. Visiting Judge Murphy gave us an interesting opinion on the sham litigation doctrine today in Corteva Agriscience LLC v. Inari Agriculture, Inc., C.A. No. 23-1059 (D. Del. May 13, 2025).
The defendant, Inari, had brought a host of counterclaims alleging the usual mess of equitable …
As most of our readers likely know, IPR estoppel means that an accused infringer who brought an IPR cannot claim invalidity at trial on a grounds it reasonably could have raised during the IPR. But what constitutes a "grounds" for invalidity has varied across different District Court judges.
Everyone agrees that, as the statute says, the PTAB cannot address system or product prior art under the on-sale bar, but can potentially address publications describing those products. There has long been a split of precedent on whether an accused infringer covered by IPR estoppel can argue invalidity based on a prior art product, where the documentation describing the production could have been asserted in the IPR …
We had some indications last fall that referrals to visiting judges may be slowing—but six months on, it's clear that they are still ongoing. This week, we saw 11 cases reassigned to visiting Judge Campbell Barker of the Eastern District of Texas. That prompted me to take a look at recent referrals in patent cases, and here is what I saw for this year:
May 6, 2025: 11 reassignments to visiting Judge Campbell Barker, E.D. Tx.
April 8, 2025: 11 reassignments to visiting Judge Choe-Groves, United States Court of International Trade
March 11, 2025: 9 reassignments to visiting Judge John F. Murphy, E.D. Pa.
February 12, 2025: 7 reassignments to visiting Judge Joshua D. Wolson, E.D. …
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