A Blog About Intellectual Property Litigation and the District of Delaware


Entries for author: EDiBenedetto

A (Rather Wordy) Guide to Page and Word Limits in the District of Delaware

Emily S. DiBenedetto, April 4, 2025
Page Limits Scheduling Orders

"And another thing . . ." John Doyle

Most practicing Delaware attorneys can probably rattle off page limit requirements in their sleep, given how frequently we hear this question from out-of-town counsel.

Limits vary case-to-case based on differences scheduling orders and other circumstances, but below we've summarized some of the default limits set by the District of Delaware local rules, standing orders, and our judges' form scheduling orders.

[The irony of subjecting readers to a long post on word limits is not lost on me.]

The General Rule

Under LR 7.1.3, most motions are limited to:

  • Opening briefs = 20 pages
  • Answering briefs = 20 pages
  • Reply briefs = 10 pages

Everything must be double-spaced and in at least 12-point …

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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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Yes, Parties Can Object to Non-Dispositive Orders from a Magistrate Judge

Emily S. DiBenedetto, March 12, 2025
Magistrate Judges Non-Dispositive

Is the non-dispositive ruling in your case really special enough to warrant objections?
Is the non-dispositive ruling in your case really special enough to warrant objections? AI Generated, displayed with permission

Unlike with R&Rs on dispositive matters, the magistrate judges do not typically flag the deadline for objections to non-dispositive orders. No surprise, then, that attorneys sometimes seem to forget that parties can object to even non-dispositive rulings by magistrate judges under FRCP 72(a). Yesterday Judge Williams overruled such an objection to a non-dispositive order by Magistrate Judge Burke.

As Nate discussed last month, Judge Burke had granted a motion to strike a late-disclosed disclosure-dedication argument, because the party making the argument had never disclosed it in response to a contention interrogatory, and instead (apparently) held it until the summary judgment stage.

Judge …

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Unlike in the Eastern District of Texas, Delaware Scheduling Orders Avoid Potential Rule 11 Pitfalls at the Pleadings Stage

Emily S. DiBenedetto, Feb. 19, 2025
Scheduling Order Sanctions

Parade of Horribles.jpg
The Looming Parade of Horribles, AI-Generated, displayed with permission

I’m partial to percussion and noticed that there was a gaping hole of staccato in the rising swell of the IPDE music videos, subtle though it may have been in the background of Andrew's singing and Nate’s interpretive dance performances. Leaving the snare drum at home, today I chime in only with the lonely voice of a wistful triangle to supplement this week’s stories with a tale from a faraway land—the Eastern District of Texas.

Why do we in Delaware care about this opinion? It gave me a fresh appreciation for the orderly composition of Delaware scheduling orders. It involved a problem that cannot arise in a District of Delaware …

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Check Those Cites

Emily S. DiBenedetto, Aug. 6, 2024
Alice Step One MTD

Alice ponders the internet of things
Alice ponders the internet of things AI-Generated, displayed with permission

Last week in Ignite Enterprise Software Solutions, LLC et al. v. NGData, US Inc. and NGData N.V., C.A. 23-1209 (D. Del. Aug. 2, 2024), Judge Murphy dinged defendants for stale citations, including failing to cite recent Federal Circuit precedent on the level of detail required in patent pleadings.

We flagged the case that this Court called the "most recent and most relevant Federal Circuit authority" back when it came out: Bot M8 LLC v. Sony Corp. of Am., C.A. No. 2020-2218, 2021 U.S. App. LEXIS 20624 (Fed. Cir. July 13, 2021).

Analysis of Every Claim is Not Required in the Complaint

The holding from Bot is …

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Door Slams on Sham Litigation Exception, Resulting in No Antitrust Liability for Prior IP Lawsuit

Emily S. DiBenedetto, Feb. 8, 2024
Trademark Litigation Antitrust

Monopoly
AI-Generated, displayed with permission

Why did physicists refuse to write about the Antitrust Paradox? Because every time they tried to define the relevant market share, the observer effect kicked in, and the monopoly disappeared. (I hope readers who have dual Bork/quark interests enjoyed that.)

Today’s highlighted opinion proceeds from trademark law, crosses into antitrust law, and has implications for patent law. In it, Judge Connolly rejects a plaintiff's attempt to argue that the defendants' prior filing of trademark litigation against competitor gave rise to anti-trust and unfair competition claims.

Noerr-Pennington Precludes Some Tort and Anti-Trust Claims Based on Litigation—Unless It Was Sham Litigation

Judge Connolly explained that the Noerr-Pennington doctrine provides immunity from certain types of claims that a plaintiff …

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Judge Choe-Groves of the Court of International Trade Joins Delaware's List of Visiting Judges

Emily S. DiBenedetto, Dec. 13, 2023
Visiting Judges Standing Orders

Just imports - no exports? No, he's an importer and exporter.

Judge Choe-Groves, of the Court of International Trade, has been newly added to the list of Delaware’s visiting judges. In early November, she was reassigned a first handful of cases.

[Thanks to an unnamed colleague who mentioned this fact in passing today and expressed surprise that we hadn’t highlighted it on the blog. Keep giving us feedback - we love it!]

Judge Choe-Groves has served as a visiting judge in several other jurisdictions including the Southern District of New York, District of Idaho, Northern District of Oklahoma, and United States Court of Appeals for the Ninth Circuit.

Not all of Judge Choe-Groves’ visiting assignments have been patent cases. In fact, most of her earlier assignments appear to be …

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The Other Meaning of an Ellipsis

Emily S. DiBenedetto, Nov. 28, 2023
Legal Writing

Dot-dot-dot
AI-Generated, displayed with permission

We all know what ellipses (". . .") mean, right? It means that something in a quote was omitted. According to Bluebook Rule 5.3:

“Omissions of a word or words is generally indicated by the insertion of an ellipsis, three periods separated by spaces and set off by a space before the first and after the last period (“♦.♦.♦.♦”), to take the place of the word or words omitted. Note that “♦” indicates a space.”

In yesterday's lengthy Mavexar opinion, however, Chief Judge Connolly pointed out that ellipses in a transcript can mean something else entirely. They are to be used to

reflect the fact [that the witness] trailed off and was silent for a …
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Highlights from the United States District Court District of Delaware Annual Report 2023

Emily S. DiBenedetto, Aug. 25, 2023

This report, produced by the Court, is available on the Court's website. I’d encourage our readers to peruse the full report, but we highlight a few interesting statistics and announcements below.

IP Cases Continue to Dominate the Docket

In 2022, there was an increase in jury trials to 19 in the District of Delaware. Patent/IP cases accounted for 44% of all civil filings in the last 7 years and 43% in 2022 alone.

Pie Chart Delaware Docket
The United States District Court: District of Delaware

Nationally, patent filings decreased from 4,037 filings to 3,854. In the District of Delaware in 2022, 685 patent cases were filed, a 23.04 percent decrease from the previous year of 890. Delaware is second in the nation, after …
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Don’t Miss the Motion for Reargument Deadline

Emily S. DiBenedetto, Aug. 23, 2023
Reargument Reconsideration

Local Rule 7.1.5 governs motions for reargument, sometimes styled as motions for “reconsideration.” As we’ve noted, the deadline to move for reargument or reconsideration can be easy to miss. The deadline is just 14 days after the order or opinion, and there are no CMECF reminders to flag it for counsel.

What Is a motion for reargument?

A request for “clarification” of the Court’s prior order may be interpreted as a motion for reargument/reconsideration. But a motion for reargument is not a do-over. In fact, you cannot rehash arguments you already made—and you cannot make new arguments you could have raised earlier.

Erasers
Mick Haupt, Unsplash

The scope of a motion for reargument is very narrow, and must show at …

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