A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Proposed Orders

Drafting a proposed order can be a fraught exercise. It's easy to leave off some portion of the relief you really want, and then face a later argument that its been waived. That's why you'll often see proposed orders that just make anodyne statements that the motion is granted.

It is hereby ordered that the Motion is GRANTED errr, FORTHWITH and errr, FOREVERMORE
It is hereby ordered that the Motion is GRANTED errr, FORTHWITH and errr, FOREVERMORE AI-Generated, displayed with permission

But a well-drafted proposed order can be a source of great power as well. Such was the lesson of Yesterday's opinion in Attentive Mobile Inc. v. Stodge, Inc., d/b/a/ Postscript, C.A. No. 23-87-CJB, D.I. 728 (D. Del. Aug. 14, 2025) (Mem. Order).

Postscript moved for summary judgment "ON ATTENTIVE’S CLAIMS OF INFRINGEMENT OF THE ʼ887, ʼ897, AND ʼ074 PATENTS." Judge Burke ultimately granted the motion, at which point the parties disputed whether the motion encompassed claims for induced infringement, or only direct infringement.

Judge Burke found that the motion covered both, citing the unequivocal statements in the proposed order Postscript sought "entry of judgment in Postscript's favor that US Patent Nos. [whatever] are not infringed."

In the Court’s view, this language—i.e., language asserting that the Motion was putting at issue all of Attentive’s “claims of infringement”—was important. There are various ways that an accused infringer in a patent litigation can be said to have engaged in “infringement” of a patent: e.g., via direct infringement, indirect infringement (which includes induced infringement, at issue here, and contributory infringement), joint infringement and/or willful infringement. If an accused infringer files a motion that facially seeks summary judgment on all of the patentee’s “claims of infringement” against it—and if in that case the patentee has a claim of induced infringement—then the patentee should be on alert that its induced infringement claim is among the “claims of infringement” that is being put at issue by that motion.

Id. at 2-3 (internal citations omitted).

The Court also went on to ...

[UPDATE: Apparently not! This opinion was reversed on a motion for reconsideration; further update below]

Judge Connolly today struck portions of an expert report where the expert opined that the accused product did not infringe because it included extra components in addition to what was claimed in a means-plus-function claim element.

According to the Court, this is contrary to the well-established principle that additional structure does not preclude infringement of an MPF claim element, if the required structure is also there.

[UPDATE: As the Court recognized on reconsideration, that was not what was happening here. Instead, the expert was pointing out that the opposing party's expert had failed to identify the a structure that performed the function, not that the …