A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: KB

Opinion: Why You Usually Shouldn't Accuse Opposing Counsel of Dishonesty or Bad Faith

Andrew E. Russell, Sept. 29, 2025
Letter Briefs KB

Lying
Joshua Hoehne, Unsplash

As we mentioned recently, there was some discussion at the 2025 D. Del. Bench and Bar about the role of Delaware counsel. We may have a more detailed post about that at some point in the future. But today I wanted to offer some thoughts on one specific thing that good Delaware counsel does: avoiding allegations of dishonesty or bad faith.

Most Delaware counsel tend to be involved with filings of one type or another. Under the Local Rules, association with Delaware counsel is required, and Delaware counsel must be the registered users of CM/ECF.

In practice, that means we handle a ton of filings, typically drafted by out-of-state co-counsel. Delaware counsel's level of involvement …

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Judge Burke Releases a Set of Tips Regarding Markman Briefing and Hearings

Andrew E. Russell, Sept. 15, 2025
KB Claim Construction

District Court Seal

Aaaand we're back! We extended the blog break a bit because I was traveling last week to participate on a panel about AI-related litigation at the Sedona Conference. There have been several interesting AI-related copyright decisions this year (including in Delaware), and we may post about them down the line.

For now, I wanted to alert everyone that Judge Burke posted a set of "Tips Regarding Markman Briefing and Hearings" on his website.

The document has 10 total tips, all directed towards Markman practice before Judge Burke. But I would say that it is definitely worthwhile reading for any Delaware litigator. The tips include guidance regarding (spoiler alert):

  • The number of terms Judge Burke will hear and decide …
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Tips on the Required Structure of a Brief in the District of Delaware

Andrew E. Russell, March 5, 2025
KB Legal Writing

Stay on the Path
Mark Duffel, Unsplash

This is something I've been thinking we should cover for long time. Here in the District of Delaware, the local rules set forth a required structure for every brief—but out-of-town counsel often seem to miss that.

Basically, Local Rule 7.1.3(c)(1) requires that an opening or answering "brief" contain seven specific sections in a specific order:

  1. A table of contents (TOC)
  2. A table of citations and authorities (TOA)
  3. A "statement of the nature and stage of the proceedings"
  4. A summary of argument
  5. A "concise statement of facts"
  6. An argument
  7. A short conclusion.

These look simple, but they trip people up sometimes. Here are some tips for each section.

Required Sections for Every Opening and Answering Brief

TOC …

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Why Is Your District Court Jury Verdict Sealed, and When Will It Be Un-Sealed?

Andrew E. Russell, Oct. 18, 2024
KB

Sealed
Cristi Ursea, Unsplash

Most readers already know the answer to the question in the title. This post is, honestly, mainly for newer attorneys and people who search for this question.

But it's something that comes up a lot! When a jury first issues a verdict on a verdict form, it shows up on the docket like this:

285 [SEALED] JURY VERDICT. (nms) (Entered: 09/27/2024)

Acceleration Bay, LLC v. Amazon Web Services, Inc., C.A. No. 22-904, D.I. 285 (D. Del. Sept. 27, 2024).

Often, there will be a panicked question from (typically) a newer associate on the case, along the lines of "Why is the verdict sealed? Are we not allowed to tell the client? What can we send them?"

Fear not! The verdict sheet is sealed because it has the juror names/signatures, and the Court typically issues a redacted version the same day that can be shared with the client or anyone else. The docket entry will look like this:

286 REDACTED VERSION of 286 Sealed Jury Verdict. (nms) (Entered: 09/27/2024)

Id., D.I. 286.

Until then, a verdict announced in open court is not sealed and can normally be shared. The only sealed item is the verdict form containing the juror's names.

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Do We All Need to Be Meeting-And-Conferring on Personal Electronics Motions for D. Del.? Probably Not

Andrew E. Russell, Feb. 28, 2024
Personal Electronics KB

Personal Electronics in Courtroom
AI-Generated, displayed with permission

The text of the District of Delaware Local Rules require non-pro se parties to meet-and-confer on every non-dispositive motion:

RULE 7.1.1. Statement Required to be Filed with Nondispositive Motions.
Except for civil cases involving pro se parties or motions brought by nonparties, every nondispositive motion shall be accompanied by an averment of counsel for the moving party that a reasonable effort has been made to reach agreement with the opposing party on the matters set forth in the motion. Unless otherwise ordered, failure to so aver may result in dismissal of the motion. For purposes of this Rule, “a reasonable effort” must include oral communication that involves Delaware counsel for any moving party and Delaware …
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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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District of Delaware Deposition Tips

Andrew E. Russell, July 14, 2023
Depositions KB

"We need to call the Court!" AI Generated, displayed with permission

The Court has been somewhat quiet this week as far as new decisions, so I figured I'd take this opportunity to lay out a few quick thoughts on recurring issues that come up in depositions in the District of Delaware.

This is some (but not all) of what you might hear when asking Delaware counsel "depositions are coming up next month, is there anything I should know?" (Experienced Delaware counsel might also talk about a few more topics, such as how to avoid accidentally making your witness prep materials discoverable—but those are for another post).

Here's the list:

  • When sending a notice of deposition, be sure to leave at …
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What Items and Documents Should You Bring to a Hearing as an Attorney? Here's a Checklist.

Andrew E. Russell, Feb. 14, 2023
Trial Practice KB

Pictured: The poor associate, who writes the briefs, carts the boxes, and dutifully passes polite notes up as the partner mangles the argument
Pictured: The poor associate, who writes the briefs, carts the boxes, and dutifully passes polite notes up as the partner mangles the argument AI-Generated

One question I've seen from time to time is "what should we bring to the hearing?" Not "how should we prepare," but what physical stuff should litigators bring on the day of a hearing or oral argument?

I thought it would be useful to post a checklist—both for you, our readers, and so that I can send it around in response to future questions.

The checklist below should be considered ideas for what to bring. Practiced litigators undoubtedly already have their own systems, and every hearing is different. You should not bring everything below to every hearing. This list is instead meant as a last-minute, "I'm about to head out the door, is there anything else I should bring?" checklist to spark ideas.

Note that this is geared towards oral argument in patent cases in the District of Delaware, but much of it is applicable to other kinds of hearings ...

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A Handy Transcript

Andrew E. Russell, Nov. 9, 2022
Contentions KB

Bookmarks
Chiara F, Unsplash

I thought I'd share an old transcript that has come in handy a number of times since it issued back in 2013, where Judge Andrews made a helpful ruling about how and when patentees must respond to conception date interrogatories—an issue that comes up frequently.

In Vehicle Interface Techs., LLC v. Jaguar Land Rover N. Am., LLC, C.A. No. 12-1285-RGA (D. Del.), the defendant filed a discovery dispute to compel a full response to an interrogatory asking for the date of conception and reduction to practice.

The patentee had responded, but the answer was not very helpful. According to the discovery dispute letter:

[The patentee] stated that the sole inventor . . …
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Should You Request Oral Argument on Your Motion in the District of Delaware?

Andrew E. Russell, June 22, 2022
KB Oral Argument

This is definitely not a District of Delaware courtroom. But you get the idea...
This is definitely not a District of Delaware courtroom. But you get the idea... David Veksler, Unsplash

Under the D. Del. local rule 7.1.4, a written request for oral argument is due seven days after the reply brief on a motion.

According to the rule, the Court may or may not schedule oral argument on receiving a request—and may schedule argument even if it is not requested:

Oral argument on any motion may be scheduled upon the application of a party, or sua sponte by Court order.

That leads to a common question, "Should we request oral argument on our motion?"

The short answer is: yes, if you want oral argument. The Court is going to schedule …

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