A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Complaint

Filing a Patent Complaint in the District of Delaware: A Checklist

Andrew E. Russell, Oct. 11, 2023
Complaint KB

Filing the complaint is often one of your earliest interactions with a new client. Don't mess it up!
Filing the complaint is often one of your earliest interactions with a new client. Don't mess it up! AI-Generated, displayed with permission

It's time for another in our series of knowledge base posts. This time: Filing a patent complaint in the District of Delaware.

It's honestly not all that difficult to file a complaint. But, still, when I do it, I sometimes wonder: Am I forgetting anything?

I thought I'd post a non-exhaustive checklist of items that should be included when filing a complaint, with some light commentary.

But first, a disclaimer! This is a non-exhaustive list, and it may contain errors. Consult your counsel, particularly your Delaware counsel. Do not treat this as legal advice for your particular situation. …

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How Many Stips to Extend the Answer Deadline Is Too Many? Nine. (Or Sixteen?)

Andrew E. Russell, July 2, 2023
Complaint Stipulation

Stop
Markus Spiske, Unsplash

We've noted before that parties routinely stipulate to extend the deadline to answer in D. Del. cases. You may have wondered—is there a limit to the number of times the parties can stipulate to extend the answer deadline?

Now we have the answer: Yes, at least for Judge Williams. Here is how he reacted when parties filed their ninth stipulation to extend the answer deadline:

ORAL ORDER: There have been nine (9) Stipulation and Proposed Orders entered in this case granting Defendant an extension of time for it to answer, move, or otherwise respond to the Complaint. See D.I. 20; D.I. 21; D.I. 22; D.I. 23; D.I. 24; D.I. 25; D.I. 26; D.I. 27; D.I. …
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Plaintiff's "'Cut and Paste' Approach Cannot Be a Viable Pleading Strategy"

Andrew E. Russell, Sept. 23, 2022
Complaint Legal Writing

Mel Poole
Mel Poole, Unsplash

Judge Burke issued an oral order earlier this week with some interesting language criticizing the party's attempt at an amended complaint.

In Midwest Energy Emissions Corp. v. Arthur J. Gallagher & Co., C.A. No. 19-1334-CJB (D. Del.), the plaintiff accused a very large number of entities—More than 50, it looks like—with infringement of a number of patents, all in a single combined action.

Earlier this year, it moved to amend its complaint to add additional defendants it alleged were parent companies of defendants who were as acting as the parent companies' "alter egos and agents." Judge Burke granted this request as to one party, for which the complaint included more detailed factual allegations, …

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What Does a Party Need to Include in a Patent Complaint? Definitely All Asserted Patents...

Andrew E. Russell, May 18, 2022
Default Standard Twombly

Hawk
Mathew Schwartz, Unsplash

One of the first questions that a patent plaintiff faces in bringing suit is "what do we have to include in the complaint?"

It's common in the District of Delaware for a patent plaintiff to list only a small number of asserted claims from each asserted patent, against a small number of accused products—often just one claim against one product.

Of course, listing more asserted claims may increase the chances that a court finds that the plaintiff stated a plausible claim of infringement in the event of a motion to dismiss. But many plaintiffs are fine with that risk, knowing that they can amend to avoid any motion to dismiss (usually) .

The Court normally permits parties to later add or remove asserted claims or accused products as ...

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