Plaintiff's principal with his towering pillar of hatsAI-Generated, displayed with permission
If you happen to be in Wilmington, DE tomorrow—perhaps as a summer associate—and feel like attending an interesting hearing, it could be worth stopping by Judge Noreika's Courtroom 4A at 10am.
The hearing involves an alleged protective order violation by plaintiff Rein Tech and its principal. See Rein Tech, Inc. v. Mueller Systems, LLC, C.A. No. 18-1683-MN, D.I. 170 (D. Del. May 16, 2025).
An Alleged Disclosure of AEO Information And an Alleged Prosecution Bar Violation
Rein Tech's principal apparently wears many hats. In addition to being the head of Rein Tech, he is also the named inventor on the asserted patents, the prosecuting attorney …
Wow. In Belvac Production Machinery, Inc. v. Adonis Acquisition Holdings, LLC, C.A. No. 25-166-JLH (D. Del.), the plaintiff moved to compel the defendant to preserve all random access memory ("RAM") copies of certain copyrighted software that is apparently used to operate equipment.
To me, this is a wild motion—although it takes a bit of knowledge about computer memory to show why.
Some Background on Computer Memory
Unlike Nate, who wisely avoided expounding on analytical chemistry, I feel like some background on how computer memory works is needed here, to help understand just what plaintiff is asking for. The parties didn't include this in their briefing—but they probably should have explained things a bit …
I fancy myself a bit of an aficionado of the local rules (a petty fiefdom, I know, but I rule it fairly). Like any Delaware lawyer I can rattle off the big ones—7.1.1, 16.4., 26.2 and the like—and I can even pull some b-sides out in a pinch.
But I must say I had to have a real think when I read Judge Bataillon's recent order in Astellas Pharma Inc. v. Ascent Pharms., Inc., C.A. No. 23-486-JFB-EGT (D. Del. July 28, 2025) and saw a citation to D. Del. LR 5.4(b)(3).
Obviously you'll all have this one memorized, but just in case any lay readers are …
I couldn't find a real image of a border that is "porous to the extent that it is decipherable"AI-Generated, displayed with permission
Even 10+ years after Alice, the standard for invalidity under § 101 feels inconsistent, and there is a lot of room for any two human beings (judges or otherwise) to look at the same patent and have different views. This is particularly true when you factor in the procedural hurdles, which ultimately give the Court a range of options on when to deal with a § 101 motion (e.g., before summary judgment, at summary judgment, or at trial/post trial).
So, when a D. Del. judge issues a § 101 decision, I often think it often …
An embodiment of the lens at issue—yes, this is a single claim "element"U.S. Pat. No. 6,844,990
Judge Burke issued a fascinating invalidity decision yesterday in Immervision, Inc. v. Apple, Inc., C.A. No. 21-1484-MN-CJB (D. Del.). It addresses an invalidity issue I had honestly never seen litigated—a "'single means' claim"—and, along the way, it addresses what a claim "element" is and when the "clear and convincing" standard applies to invalidity.
Basically, the whole thing is a page-turner for someone who deals with these issues, and well worth reading. I'll outline some of the most interesting points below.
"Single Means" Invalidity Is a Thing
The invention at issue is an optical lens. The opinion involves an independent claim …
I know that I promised a hard-hitting post on infringement stats in ANDA cases, and I was really going to post the update this time—really! But then the very first case I read had a neat issue that deserved a post on its own. We can only hope I remember to get to it next week.
In the meantime, today I have the rare case where the Court actually granted an adverse inference as a discovery sanction.
Central to infringement in Novartis Pharms. Corp v. MSN Pharms Inc., C.A. No. 22-1395-RGA, D.I. 523 (D. Del. July 11, 2025), was a factual issue that is only of interest to analytical chemistry …
This is apparently a cat bed, although from the looks of it, the cat goes inside—so maybe it's more like a cat sleeping bag.U.S. Design Pat. No. D1,029,404
Back in 2021, we wrote about a motion for a temporary restraining order (TRO) by an accused infringer in an attempt to force a patentee to undo its efforts to prevent the sale of the accused infringer's products on Amazon.
(We didn't do a subsequent update, but in that case the Court ultimately denied the TRO for failure to prove a likelihood of success on the merits. See EIS, Inc. v. Intihealth GER GmbH, C.A. No. 19-1227-LPS, D.I. 156 (D. Del. Dec. 10, 2021).)
Many years ago now, when I was still in the full flagrant flower of youth (38), I wrote a post discussing the relative rates at which various drug patents—compound, method of treatment, and formulation—were found invalid in Delaware.
Not analyzed at the time (because who has the time?) was the question of how often these various types of drug patents are found to be infringed in ANDA cases. I'll have a fuller post on this later in the week, but my guess is that it goes compound > method of treatment > formulation. If it turns out I am wrong, you will never be able to prove it because I will edit this post immediately.
AI-Generated, displayed with permission
In any case, method of treatment patents often follow trends with certain themes going into and out of vogue, so I suspect today's opinion from Chief Judge Connolly in Novo Nordisk, Inc. v. Mylan Pharms. Inc., C.A. No. 23-101-CFC (D. Del July 22, 2025), will be of general interest to our audience.
The patent there—for blockbuster drug Wegovy—required that the drug be administered "without another therapeutic agent," which the Court construed to mean "administered without another therapeutic agent as part of the method for reducing body weight, or for treating the conditions of diabetes or hypertension."
Mylan argued that their ANDA label could not induce infringement because, although it cautioned against using the drug with other GLP-1 inhibitors, it was agnostic as to any other weight loss drugs, merely saying that "[t]he safety and efficacy of coadministration with other products for weight loss have not been established."
Plaintiff argued that the this was sufficient to establish inducement because "the proposed label does not require patients to receive other treatment beyond a reduced-calorie diet and physical activity, 'physicians will inevitably prescribe Mylan's ANDA Product without another therapeutic agent.'"
Delaware FBA members should already have received an e-mail, but I know that some missed it or it got filtered out as spam, so here is a public service announcement. The 2025 District of Delaware Bench and Bar will take place at the Chase Center at the riverfront in Wilmington on September 25-26.
The District of Delaware Bench and Bar is a great event, and if you're a reader of this blog, it's well worth attending. It's great to see the judges and frequent litigators in person, and the judges on the panels always have useful insights. We'll likely have a summary post here on the blog, but the rules normally prohibit attribution, so you won't get the full effect …
A trial in a high-end competitor patent case can involve quite a lot of logistics. One of many items that attorneys and staff have to coordinate is hotel reservations and travel to Delaware. Between the attorneys, staff, experts, witnesses, and client representatives involved in trial, this can be quite a lot of hotel reservations and plane flights—not to mention related equipment rentals and setup.
Obviously, it can be good to make trial space and hotel reservations on the earlier side if possible. There is only so much trial space in Wilmington, and if you wait you may lose your preferred option (potentially to the trial team on the opposing side).
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
