A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Congestion

New D. Del. Case Filings Up This Month?

Andrew E. Russell, March 28, 2025
Congestion DED

I'm not sure why the AI image generator made the judge so much bigger than the traffic they are directing, but it seems somehow appropriate.
I'm not sure why the AI image generator made the judge so much bigger than the traffic they are directing, but it seems somehow appropriate. AI-Generated, displayed with permission

I've noticed, and heard from others, that it seems like there were a lot of new case filings in the District of Delaware this month.

I was curious if that's true, so I did some unscientific research based on how many PACER new-case e-mails I've received. So far, for March 2025, I've seen 127 of these. That's more than any of the 16 prior months, only one of which broke 100. And it's quite a bit more than the 49 I received in January, or the 74 I received in February.

March of last year (2024) was busy as well, with 97 such e-mails. But, even if we get no more filings today or Monday, this year's number will top last year's by more than 30%.

Of course, not all cases are the same. A litigation campaign by an NPE against many defendants is very different from a true competitor patent litigation. From a quick review, the filings this month look like a mix of both. And these include a mix of various other civil filings, not just patent cases. So it's hard to say just how big of an increase in actual workload it may be.

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Have Patent Case Referrals to Visiting Judges Slowed?

Andrew E. Russell, Nov. 4, 2024
Congestion DED

ChatGPT comes through again...
ChatGPT comes through again... AI-Generated, displayed with permission

At the FCBA's 2024 Bench and Bar, some of the speakers mentioned that referrals to visiting judges referrals to should be slowing. I've noticed that that seems to be correct — it feels like there have been fewer referrals to visiting judges lately.

Some basic Docket Navigator searches seem to confirm it. I found zero new referrals to visiting judges in the last three months (not counting related-case referrals). That's the longest gap we've had this year, after batches of visiting referrals in January, February, April, July, and on August 1. But Docket Navigator also says that there were even longer gaps last year, including one from January - May and another …

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The Jumara Factors Strike Again

Andrew E. Russell, Aug. 26, 2024
Motion to Transfer Transfer

Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>. Who wouldn't want to litigate here? These guys, obviously.
Wilmington, DE. Who wouldn't want to litigate here? These guys, obviously. Andrew Russell, CC BY 2.0

We've talked a lot about how the Jumara factors, which govern how courts in the Third Circuit exercise their discretion on motions to transfer, are pretty tough on plaintiffs. Patent cases seems to stick more often than not, but plaintiffs with other claims, such as false advertising, may not be so lucky.

Judge Andrews granted a motion to transfer in a false advertising case on Friday. Here's how the factors broke down:

Plaintiff's Choice of Forum: This always favors plaintiff, and …

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A New Technique? Peicemeal Claim Construction Opinions Issued as Individual Oral Orders

Andrew E. Russell, Aug. 9, 2024
Congestion Claim Construction

I couldn't find a picture for this. Just imagine each leaf is an individual claim construction oral order.
I couldn't find a picture for this. Just imagine each leaf is an individual claim construction oral order. Erol Ahmed, Unsplash

I've noticed that, since November of last year, Judge Burke has been issuing claim construction opinions in some cases in the form of a series of oral orders on the docket, rather than a formal memorandum opinion or an order with footnotes. I thought I'd flag this so that people know what may happen if you have claim construction in a case before Judge Burke.

I first saw the Court construe terms via oral orders on the docket in November 2023, in The Nielsen Company (US), LLC v. TVision Insights, Inc., C.A. No. 22-057, D.I. 140-141 ( …

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Unsolicited 8-Page Letter to the Court Works, Results in Permission to File Early SJ

Andrew E. Russell, July 22, 2024
Congestion Early SJ

No Dogs Allowed
AI-Generated, displayed with permission

It's usually risky to send long, unsolicited letters to the Court seeking relief, particularly with extensive argument. Generally you are well served to keep letters short and limited or you may annoy the Court.

The Court frequently says that it prefers parties to make requests for relief by motion rather than letter. This is even included most (maybe all) of the judges' form scheduling orders:

Applications by Motion. Except as otherwise specified herein, any application to the Court shall be by written motion. Any non-dispositive motion should contain the statement required by Local Rule 7.1.1 [that the parties have verbally met-and-conferred with local counsel on the line].

But the Court doesn't always enforce this. It's not …

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D. Del.'s New Magistrate Judge Announced!

Andrew E. Russell, July 8, 2024
Congestion Judges

District Court Seal

We heard from the Court last week that it has selected a new magistrate judge for the District of Delaware: Eleanor G. Tennyson.

The announcement describes her background:

The United States District Court for the District of Delaware is pleased to announce its selection of Eleanor G. Tennyson as a United States Magistrate Judge. Ms. Tennyson fills the position vacated by Judge Jennifer Hall upon Judge Hall’s elevation to the District Court.
Ms. Tennyson is an honors graduate of Grinnell College and received her master’s degree in chemistry from the Clemson University Graduate School of Chemistry. Ms. Tennyson earned her law degree from the University of Iowa College of Law where she was managing editor of the Iowa Law Review. …
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5-Body Problem

Nathan R. Hoeschen, June 13, 2024
Meet-and-Confer Discovery Dispute

Bringing a discovery dispute is a bit of a 3-body problem. At any given time, you've probably got a half dozen complaints with what the other side is doing. When one boils over into a dispute you have to grapple with whether you should just bring all of them—and risk looking unreasonable—or just address the most pressing and risk having to raise serial disputes, which might look even worse. The push and pull can quickly become insoluble.

Guillermo Ferla, Unsplash

Luckily, we got an Order from Judge Burke this week that should make this calculus slightly easier going forward.

The defendants in Bardy Diagnostics, Inc. v. Vital Connect, Inc., C.A. No. 22-351-CFC-CJB, D.I. 97 (D. Del. June 11, 2024) (Oral Order) brought the first discovery dispute of the case (by either party) via judge Burkes usual procedure of filing a letter listing the disputes.

The disputes read as the usual humdrum list of custodians not searched and rogs insufficiently answered. The only thing out of the ordinary, is that there were 5 of them included in the letter.

Judge Burke responded to the request for a teleconference the next day with ...

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Judge Noreika Denies § 101 Motion Without Addressing Merits Where Scheduling Order Permits Assertion of Additional Claims

Andrew E. Russell, May 10, 2024
MTD Motion to Dismiss

Pixelated Game Over screen on an oversized PAC-MAN arcade machine
Sigmund, Unsplash

Judge Noreika issued an interesting order yesterday denying a § 101 motion to dismiss. According to the docket, shortly after the defendant filed its motion to dismiss—and contrary to what we found when we last looked at this—the Court directed the parties to meet-and-confer on a proposed schedule.

While the motion to dismiss was pending, the Court held a scheduling conference and issued a scheduling order. In it, the parties agreed to a real case narrowing proposal (without court intervention!), with plaintiff to initially cut back to 20 asserted claims per patent and 50 total by initial contentions, and then further cut back to 25 total just before final contentions.

After the Court entered the schedule, …

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Nine Motions to Strike Is Seven Too Many

Andrew E. Russell, April 22, 2024
Motion to Strike Congestion

"They brought four motions to strike? We better bring 5!" AI-Generated, displayed with permission

There was an interesting order last week in Cleveland Medical Devices Inc. v. ResMed Inc., C.A. No. 22-794-JLH (D. Del.).

The parties filed a letter initiating a discovery dispute conference with the Court. These letters must include non-argumentative descriptions of each dispute the parties raise with the Court. Here, the letter listed a total of nine motions to strike expert reports, including five from the plaintiff and four from the defendant.

Typically the Court reviews these letters and sets a date for a conference and for briefing on each sides' issues. Here, however, the Court took issue with the extraordinary number of …

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Judge Hall Rejects Request to Impose Summary Judgment Motion Ranking, Expands Page Limits

Andrew E. Russell, April 8, 2024
Summary Judgment Ranking

Continuing our eclipse theme
AI-Generated, displayed with permission

Most of the judges in the District of Delaware have settled on page limits for summary judgment and Daubert motions in patent cases of 250 total pages: 50 pages opening, 50 pages answering, and 25 pages reply—per side.

The "per side" part is important, and it can have a significant impact on cases with multiple unrelated defendants or defendant groups.

The Court has usually resisted expanding these limits, and in many cases, has instead experimented with ways of reducing the burden on the Court. Judge Noreika, for example, has sometimes required parties to seek leave before filing summary judgment motions.

Chief Judge Connolly has instituted a "ranking" procedure in his cases to help deter meritless …

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