A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: 2026

D. Del. Citation Myths and Legends

Andrew E. Russell, Jan. 30, 2026
KB Legal Writing

Are these ancient and inviolable rules from times of old? Nope—at least, not all of them.
Are these ancient and inviolable rules from times of old? Nope—at least, not all of them. Unknown

When I first started practicing in the District of Delaware, in the decade before last, I was told there are certain rules of citation that should always be followed in filings here. I've heard these repeated by others as well.

Most of these fall into the bucket of "we do it this way because the Court prefers it," which is—obviously—a great rule of thumb. But does the Court really prefer that the bar do these things?

Out of curiosity (and for the sake of a blog post), I took a look at some of the D. Del.-specific citation rules that I've heard and applied, and whether each of our sitting judges has been applying them lately.

My thought process here is that if a particular judge has a strong preference for one citation style or another, that will probably be reflected in their own written opinions (assuming no law clerks are going rogue and slipping in their own citation preferences).

Below are some of the rules I've heard of or applied myself, and my findings as to whether they seem to reflect current judicial preferences:

"Case numbers in D. Del. should be stated as 00-000-XYZ." True.

In PACER, and in some other districts, case numbers are commonly listed like this:

1:18-cv-01892-JDW-CJB

But in the District of Delaware, that case number would typically be stated in a brief or opinion in a shorter, cleaner form:

18-1892-JDW-CJB

As the District of New Jersey's website helpfully explains, the "1:" at the beginning of the longer-form number indicates a "division" within the District.

The District of New Jersey has three divisions, corresponding to its three courthouses. The District of Delaware, however, only has one courthouse and, to my knowledge, all D. Del. case numbers in PACER are preceded with "1:". The judges mostly omit this part of the case number.

The "-cv-" in the middle of the case number stands for "civil." You may also see "-cr-" for criminal and "-mc-" for miscellaneous cases. But, in D. Del., this is commonly omitted as well. I don't know why this is omitted, really, but I like it. It results in shorter case numbers and rarely if ever causes confusion.

Finally, the Court and practitioners usually omit the leading zeros, at least if the second number is above 99. Rather than "18-01892," they write "18-1892."

"Case numbers must always be abbreviated as 'C.A. No.'" A myth!

Some attorneys are particularly emphatic about this one, I've applied this rule myself.

But it looks like ...

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An Update On Sanctions In Rein Tech

Nathan R. Hoeschen, Jan. 29, 2026
Fees Sanctions

It's a sad day here at IP/DE. Over the past year, we've milked at an astonishing 8 posts out of the saga of Rein Tech, Inc. v. Mueller Systems, LLC. The case has everything, protective order violations, a plaintiff acting as his own expert, sanctions, fees. You can't blame us for covering it.

Well you could, but we won't hear you, since we're a blog.

AI-Generated, displayed with permission

But sadly, this week brought us one of the last developments we're likely to see in the case, with the Court awarding fees to the defendant incurred in bringing the various protective order disputes.

The defendant ended up seeking a little less than 40K in fees and costs. The plaintiff, …

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Court Grants § 101 Motion on Single Claim, Rejects Defendant's "Gambit" to Dismiss Entire Complaint Without Addressing Other Claims

Andrew E. Russell, Jan. 28, 2026
MTD § 101 Motion to Dismiss

Leon-Pascal Jc, Unsplash

Accused infringers often get hung up on the issue of representative claims in § 101 motions. Typically, a patent complaint will assert infringement of a patent, and offer specific details of how at least one claim from the patent is infringed. In the District of Delaware, at least, the patentee is free to later assert additional claims, or drop the original claim, without amending the complaint.

This can cause problems for accused infringers when they move to dismiss the entire complaint on § 101 grounds. Sometimes patents have a lot of claims, and the Court may not want to address the full scope of the claims one-by-one, when some of them—or, more likely, most of them—will …

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The Ripple Effect

Nathan R. Hoeschen, Jan. 27, 2026
Pennypack

Growing up, my grandparents lived on a lake in far northern Minnesota. Naturally, one of my favorite pastimes (during the 6 hours a year when the lake was not frozen) was throwing objects into the lake to see the splash. Stones, screws, turtles, siblings, turtles and siblings together in a move I called turtle-terror-soup, all were grist for the splash mill.

Andrew E. Russell, displayed with permission

Famously, once the splash settled and the turtles have returned to doing whatever they do, the waters turned calm once again. A passerby moments later would have no knowledge of the true chaos that had just passed. This is the way of true ripples.

Metaphorical ripples, however, are a bit trickier, as evidenced …

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"I do not think that I should grant a stay in order to increase [the Defendant]'s chances of getting an IPR instituted."

Andrew E. Russell, Jan. 23, 2026
Pre-Institution Stay Stay Pending IPR

"You should grant our stay because it will increase the chances of institution which will increase the chances of you granting our stay" Ihcoyc

This week in MYW Semitech, LLC v. Apple Inc., C.A. No. 25-504-RGA-EGT (D. Del.), the Court rejected a pre-institution IPR stay argument that I haven't seen before.

The accused infringer pointed out that the PTAB now considers whether any pending District Court action is stayed. It argued that, because institution would simplify the case (one of the traditional stay factors), the Court should stay pre-institution to maximize the chances of institution and, thus, simplification:

Under the new bifurcated process, granting a stay increases the likelihood of simplification of the issues. The factors considered by the Director as part of the discretionary denial process include “whether the court granted a stay” in this case. . . . This “evolving circumstance[]” means that granting a stay at this point directly increases the likelihood that [the accused infringer]’s IPRs will be considered on the merits and instituted—which in turns increases the likelihood that these IPRs will simplify the issues for the Court. . . . Thus, a stay promotes the simplification of the issues by encouraging the Director to allow consideration of the IPR on the merits for purposes of institution. The new discretionary denial procedure thus presents a new reality that uniquely warrants a stay while IPRs are at the discretionary considerations stage.

D.I. 65 at 2-3. Judge Andrews denied the pre-institution stay in a three-sentence oral order, and dedicated one of those three sentences to specifically rejecting this new argument:

ORAL ORDER: The motion for a stay pending IPR (D.I. 59) is DENIED without prejudice to renewal should an IPR actually be instituted. There is no reason to interrupt the schedule based on speculation about what might happen in April or June 2026. (D.I. 60 at 2). I note that I do not think that I should grant a stay in order to increase [the defendant]'s chances of getting an IPR instituted.

MYW Semitech, LLC v. Apple Inc., C.A. No. 25-504-RGA-EGT, D.I. 68 (D. Del. Jan. 21, 2026). Good to know!

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It Depends

Nathan R. Hoeschen, Jan. 22, 2026
Marking

It's usually easy to spot a dependent claim. They will immediately go to the first person they know at a party and follow them around for the whole evening. They text too much. They may boil your pet rabbit.

They also usually begin with something like "the compound of claim one, wherein the R1 group is cocktail sauce or raspberry jam"

Would you believe we already had this image saved for some reason?
Would you believe we already had this image saved for some reason? AI-Generated, displayed with permission

But what do you make of a claim like this?

A method of performing an assay that monitors cell-substrate impedance, comprising: providing the system of claim 1;
introducing cells into at least one well of said system;
monitoring cell-substrate impedance of said at least one well.

It references a specific system claimed in an an earlier claim (here a fancy sensing wellplate). But it doesn't look at all like the usual form. Instead it pretty much says, "use that well plate we told you about and then look at what happens you big dummy."

(Eds. Note: I should move into prosecution)

The issue came up in the context of a dispute over marking. As shown above, the patent in Agilent Technologies, Inc. v. Axion BioSystems, Inc., C.A. No. 23-198-CJB (D. Del. Jan. 12, 2026) had an independent system claim and these "mixed" method claims that required using the system. It was undisputed that the plaintiff had sold a wellplate that practiced the system claim without marking it.

Years ago, the Federal Circuit held that a party could get around 287 in these circumstances by only asserting the method claims, even if there were other unasserted system claims in the same patent. Crown Packaging Tech., Inc. v. Rexam Beverage Can Co., 559 F.3d 1308, 1316 (Fed. Cir. 2009). But that leaves the question of what to do with a claim like this that actually requires the use of the infringing apparatus?

In granting summary judgement of no pre-suit damages, Judge Burke held that ...

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Court Cuts Off Further Stipulated Answer Deadline Extensions After Five One-Month Stips

Andrew E. Russell, Jan. 21, 2026
Stipulation Scheduling

This frozen flower has nothing to do with this post. But it has been cold out there this week!
This frozen flower has nothing to do with this post. But it has been cold out there this week! Andrew E. Russell, displayed with permission

Parties in D. Del. cases often stipulate to extend the answer deadline. Typically, a 30-day extension is basically a given. It's rare for a party to deny that initial extension, and I have never heard of the Court denying a stipulated extension like that. It just takes a while for a party to get counsel together and then for those counsel to review the complaint and research the facts.

But, as we note in our page about stipulations, parties sometimes run into trouble when they repeatedly extend the answer deadline to try to …

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The Advantage of Silence

Nathan R. Hoeschen, Jan. 20, 2026
Lanham Act

There is no more cliched legal advice than "say nothing." It is such a staple of the greater Law and Order cinematic universe that the average 8-year-old, upon being arrested for rampant tomfoolery (still a crime in Delaware!) knows to ask for their phone call and then remain silent.

I know its a dog, but the image generator is down and its all I had. Just pretent its an unfortunately hairy child.
I know its a dog, but the image generator is down and its all I had. Just pretent its an unfortunately hairy child. AI-Generated, displayed with permission

Wow Tech USA, Ltd. v. EIS, Inc., C.A. No. 24-115-GBW (D. Del. Jan. 9, 2026) dealt with the fallout of an earlier patent dispute between the parties.

Both parties are competitors in the field of obscure and presumably advanced sex toys with "air pulse technology." The case had gone to trial in 2023, with the jury returning a verdict of willful infringement and awarding a $12.8 Million lump sum royalty (a running royalty was also an option on the jury form, so this lump sum choice was explicit).

However, the defendant's equitable defenses were not decided at the trial and remain outstanding, and thus no final judgment has been entered.

This new case arose when the defendant allegedly told potential customers that:

the jury verdict in the Patent Action "gave Defendant a fully paid-up license for the lifetime of Novoluto's patents-in-suit," and that the license includes Defendant's Air Pulse products, "including new-yet-materially-identical products Defendant has released and continues to introduce to the market since trial in the Patent [Action]."

Id. at 2 (quoting complaint).

Plaintiff thus brought Lanham Act false advertising claims (along with a host of related state law claims) based on these statements and defendant moved to dismiss arguing that these statements were literally true because "[a] lump sum patent damages award has the same effect as a lifetime paid-up license to the patents."

The Court granted the motion to dismiss for lack of particularity in the allegations (taking a side in the Third Circuit split on ...

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Delay Is a Motion Killer: Part Four

Andrew E. Russell, Jan. 16, 2026
Motion to Strike Delay

Expect Delays
Erik Mclean, Unsplash

Don't let your discovery motions sit! We got another opinion this month denying a discovery motion in part due to a party's delay, this time from visiting Judge Bibas of the Third Circuit:

ORAL ORDER: I DENY Vertex's motion to strike, D.I. 178 . I apply the Pennypack factors: (1) the surprise or prejudice to Vertex; (2) the ability of Vertex to cure the prejudice; (3) the likelihood of disruption of trial; (4) the bad faith or willfulness involved in not complying with the disclosure rules; and (5) the importance of the evidence sought to be excluded. Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 90405 (3d Cir. 1977). Lupin had disclosed enough that …
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