If, like me, you're wondering what changed: worry not! We did a comparison. The main change, other than minor wording and formatting revisions, is that his procedures for ranking summary judgment and Daubert motions now apply to non-patent cases.
This makes sense—we see plenty of rather large and heavily-litigated competitor cases that are not patent cases here in D. Del., including copyright and trade secret cases. These can involve multiple summary judgment motions just like patent actions.
Interestingly, Chief Judge Connolly did not import the page limits for summary judgment motions into his non-patent scheduling order. In …
I don't think we ever did a post on this, but back in 2023, Federal Rule of Evidence 702 was amended to clarify that the burden of showing admissibility of an expert witness's testimony falls on the offering party (addition highlighted below):
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will help . . .
FRE 702 (2025).
This is consistent with a long-standing Third Circuit holding in In re Paoli R.R. Yard …
Summary Judgment and Daubert briefs are often sprawling, slothful beasts. They shift from issue to issue lodging complaints both specific and general over the course of many pages and exhibits.
Accordingly, it can be hard parse which arguments are actually being pressed and require a response.
Today's case is a sobering reminder of the consequences of missing one.
The plaintiff's opening Daubert brief in Magnolia Med. Techs., Inc. v. Kurin, Inc., C.A. No. 24-1124-CFC, consisted of 18 pages complaining about how the defendant's invalidity report was "devoid of any analysis or detail and fails at baseline to even map the prior art to the claim elements or explain what combination or modification of the prior art …
In the District of Delaware, Daubert motions (i.e., motions to exclude expert testimony under FRE 702) are normally due at the same time as case dispositive motions, and often share a page limit.
This makes a lot of sense, since Daubert motions are often more or less dispositive of central substantive issues in the case. Sometimes, if the party cannot present expert testimony on a particular substantive issue, they essentially just lose (although for other things, not so much).
Often, parties will present their primary Daubert issues at the deadline, only to realize later on that there are other lingering issues that fit the Rule 702 case law. …
I always find that it can be helpful to see how judges rule on things, even if the rulings are kind of fact-specific, because it can still give you a sense of how they will rule on other things. (Thus, we have a blog.)
In Attentive Mobile Inc. v. Stodge, Inc., d/b/a Postscript, C.A. No. 23-87-CJB (D. Del. Jun. 12, 2025), Judge Burke addressed a Daubert motion to preclude a damages opinion that included revenue from non-infringing functionality in its royalty base, on the basis that it failed to apportion damages.
It has been pointed out that many of my references are so oblique as to be indecipherable. Rather than improve the practice, I have resolved to simply include a footnote at the bottom of each post, lest they go unappreciated.
The best and worst artists please themselves first.
AI-Generated, displayed with permission
Anyway, today's case is Cosmokey Solutions GmbH v. Duo Security, Inc., C.A. No. 18-1477-JLH-CJB (D. Del. May 19, 2025).
The defendant there brought a Daubert motion to preclude the plaintiffs' experts testimony on the grounds that he offered a "legally wrong construction" of one of the claim terms. Naturally, this motion was brought long after the Court issued its Markman order. Neither party had proposed …
"In my expert opinion, the patents are really valuable. The plaintiff told me so!"AI-Generated, displayed with permission
Exclusion of damages opinions are a frequenttopicforourblog. Daubert motions to exclude expert opinions tend to have a higher success rate than other types of Daubert motions, and it's worthwhile to have a good understanding of where the pitfalls lie, whether you are helping an expert draft a damages opinion or considering challenging one.
Yesterday, the Court granted a Daubert motion to exclude a damages opinion in a patent case. The expert relied on prior licenses to other patents from the same inventor to support his reasonable royalty opinion for the patents-in-suit. That requires showing that the prior …
Today, Chief Judge Connolly issued a memorandum order in Stirista, LLC v. Skydeo Inc., C.A. No. 23-856-CFC denying a Daubert motion in part because it sought to strike the expert's expert report rather than excluding his testimony.
The Court actually agreed that the expert's testimonyought to be excluded under Rule 702—if only the moving party had filed a better motion:
In its briefing filed in support of the motion, Stirista argues that "Mr. Kelleher's opinions and conclusions related to market confusion should be excluded [under Rule 702] as unqualified, unreliable, and unhelpful to a trier of fact." . . . Having read the parties' briefing on this question, I'm inclined to agree with Stirista. …
If law has one guiding principle, it is that words matter. The precise choice of verb or adjective can be the difference between friend and foe, peace and war, victory and defeat.
You've read Faust, you get it.
History's most famous lawyer?AI-Generated, displayed with permission
We saw a great example of this principle this week in I-Mab Biopharma, v. Inhibrx, Inc., C.A. No. 22-276-CJB (D. Del. Oct. 17, 2024) (Mem. Order). I-Mab was prought under the DTSA which allows damages to be calculated as either (1) damages for actual loss plus unjust enrichment or (2) a reasonable royalty. 18 U.S.C. § 1836(b)(3)(B).
The defendants—who unsurprisingly preferred a lower damages figure—served an expert damages report that noted that plaintiff's "actual damages" might be "zero." The plaintiff moved to exclude the opinion under Daubert, arguing that their damages theory was based on a reasonable royalty, and thus an opinion that their "actual damages" might be zero was neither here nor there, and was unduly prejudicial.
The defendant countered that the expert had meant that "Dr. Manning is 'not offering an opinion on actual losses, but instead references ‘actual damages’ as reflective of damages I-Mab may be awarded'—in other words, according to Defendants, the zero damages opinion is an opinion that Plaintiff’s reasonable royalty damages may be zero." Id. at 8 (quoting D.I. 364 at 23).
Judge Burke, however, found the expert's choice of words dispositive, and struck the so-called "zero damages opinion"
The Court agrees with Plaintiff that Defendants are ignoring the “actual words” that Dr. Manning used, as he did not opine in the zero damages opinion that Plaintiff’s “reasonable royalty damages” are zero (nor do Defendants point to anywhere else in Dr. Manning’s report where he opined that Plaintiff’s reasonable royalty damages should be zero). Nor do Defendants explain why an opinion that Plaintiff’s “actual damages . . . are zero” should be interpreted to actually mean that Plaintiff’s “reasonable royalty damages are zero.” Moreover, the Court agrees with Plaintiff that Dr. Manning does not seem to provide any facts or analysis in support of the zero damages opinion. Thus, Defendants have not sufficiently explained how, inter alia, Dr. Manning’s zero damages opinion is relevant in light of Plaintiff’s argument to the contrary; therefore it must be excluded.
We got an interesting Daubert opinion from judge Burke yesterday. It's actually not in a patent case, but the issue was neat enough that I'm willing to make an exception to our usual rule.
(Eds. note—I really hate that Daubert is always italicized because its a case name, but the pronunciation is not at all French. I see italics and I get all excited to roll some R's or whatever and then I just sound like the midwesterner I am).
The issue: can an expert report be too polite?
They've always struck me as a very polite-looking creature, despite the whole cannibalism thingDavid Clode, Unsplash
The case involved various disclosures in a business transaction, and the expert in question was an accounting professor opining on whether certain financial disclosures were deficient. Reading through the statements, they do strike me as unusual for an expert report:
“I am uneasy about the fact that there were no disclosures [in the financial statements] about Schratter’s ability to continue to operate as a going concern.”
“I was surprised that the financial statements did not make any mention of a possible impairment of goodwill. . . . Given the financial condition of Schratter in 2014 and its recent financial performance, I would have expected to see some disclosures about an impairment test for goodwill and why no impairment was recorded.”
ECB USA, Inc. v. Savencia, S.A., C.A. No. 19-731-GBW-CJB (D. Del. June 10, 2024) (Mem. Order) (quoting expert report of Ricky Lee Antle).
I mean, you see it right? This sort of language—both personal and measured—is the sort you might expect to hear from your own deeply disappointed accountant, rather than in an expert report. Still, it's tough to say what exactly would be objectionable about it.
The tack defendants chose was to challenge these statements as ...
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