On Friday, in Secure Matrix LLC v. Dress Barn Omni, Inc., C.A. No. 25-1530-CFC (D. Del.), Chief Judge Connolly ordered that the Court will not be considering a stipulated dismissal with prejudice of a patent action until the plaintiff files, and the Court rules on, a pro hac motion for the plaintiff's attorney:
ORAL ORDER: The Court is not willing to entertain the parties' proposed stipulation before [plaintiff's attorney]'s "forthcoming" pro hac vice motion is filed and ruled upon. Ordered by Judge Colm F. Connolly on 1/30/2026. (mws) (Entered: 01/30/2026)
Secure Matrix LLC v. Dress Barn Omni, Inc., C.A. No. 25-1530-CFC (D. Del. Jan. 30, 2026).
Typically, final judgment is the end of the road for a patent case. It's right there in the name. Sometimes, however, it is just a further maneuver in a forever war which the parties have little hope of resolving in their lifetimes.
There are, of course, only limited legal avenues for keeping the fires burning after final judgment. Today's case (oddly, the same as yesterday's case) deals with contempt.
The prompt was "the very embodiment of contempt." I think the bot has some personal issues to resolve.AI-Generated, displayed with permission
As we discussed yesterday, BioDelivery Sciences International, Inc. v. Alvogen Pb Research & Development LLC, C.A. No. 18-1395-CFC-CJB (D. Del.) had proceeded to judgment years ago, with the plaintiff generally prevailing.
Like most ANDA cases, the judgment contained a clause enjoining the defendant from making/selling/using the "ANDA Products" until after the expiration of the infringed patents. D.I. 308.
Years later, the defendant filed a new ANDA based on the same listed drug, apparently reformulated to design around the relevant patents. The Plaintiff, in addition to filing a new ANDA case against this ANDA, brought a motion to enforce the judgment.
Judge Connolly denied the motion, finding that it was procedureally improper:
I need not decide whether the products covered by ANDA No. 220582 are an "ANDA Product" covered by paragraph 7's injunction because I agree that the motion is procedurally improper, and I will deny it for that reason . . .
I agree that to the extent BDSI seeks to enforce the injunction in paragraph 7, it must do so by way of a contempt motion. An injunction is "an equitable decree compelling obedience under the threat of contempt[.]" And thus "injunctions are enforced through the district court's civil contempt power." Accordingly, "[i]f a party contends that another party is violating an injunction, the aggrieved party should move the court for an order to show cause why the other party should not be held in civil contempt."
D.I. 423 at 9-10 (internal citations omitted).
It's not clear from the opinion whether the door is technically open for a further motion for contempt. However, given that the Court took the parties to task for the "waste of judicial resources" and "obstreperous behavior by both sides to a degree I have rarely experienced as a judge" I would not be at all surprised if the plaintiff just let it lie and continued with the new case. Only time shall tell.
The case involved "skylight caps"—insulated covers for skylights. Apparently Wal-Mart needs around a million of them.Walmart, CC BY 2.0
Yesterday, Chief Judge Connolly issued an opinion granting a preliminary injunction in Lennox AES Holdings LLC v. Benton, C.A. No. 25-575-CFC (D. Del.).
This contract case was originally filed in the Court of Chancery to enforce non-competition and non-solicitation provisions of an agreement related to the purchase of a business (or, at least, its assets).
The plaintiff is the business who purchased the assets. It filed suit in the Court of Chancery to stop the previous owner from selling certain kinds of products, which it alleged violated the agreement.
Fun fact, I just spent about 20 minutes trying to get this post to go live, while the server gave me an obtuse error message. It was only after I got frustrated enough to actually restart my computer that I realized the problem was I had already used my stupid pun title in another post.
So I apologize for the inferior pun, it was all I had left to give.
Today's case is a rather unusual stay opinion in Sphere USA, LLC v. The Gillette Company LLC, C.A. No. 23-1093-CFC, D.I. 32 (D. Del. Nov. 6, 2025). We've mentioned in the past how IPR stays are becoming increasingly common,Ex parte reexam stays, …
This is a magnolia flower, apparently, if (like me) you were curious.Erda Estremera, Unsplash
I always think there is something to be learned when the Court is critical of the parties' briefing on an issue.
Today in Magnolia Medical Technologies, Inc. v. Kurin, Inc., C.A. No. 24-1124-CFC (D. Del.), Chief Judge Connolly had strong words for both parties in response to the briefing on a motion to strike.
In its motion, the accused infringer sought to strike the patentee's supplemental interrogatory response served almost five months after the close of fact discovery. The interrogatory response disclosed that one of the patentee's products practices the asserted claims, and the patentee served it three weeks after the FDA approved the patentee's request to market the product.
The accused infringer first argued that the Court should strike the supplemental interrogatory responses based on the language in Chief Judge Connolly's scheduling order requiring a patentee asserting practicing products to identify them in its infringement contentions:
Disclosure of Asserted Claims and Infringement Contentions. Unless otherwise agreed to by the parties, no later than 30 days after the date of this Order, a party claiming patent infringement shall serve on all parties a "Disclosure of Asserted Claims and Infringement Contentions." Separately for each opposing party, the Disclosure of Asserted Claims and Infringement Contentions shall contain the following information:
. . .
If a party claiming patent infringement wishes to preserve the right to rely, for any purpose, on the assertion that its own or its licensee's apparatus, product, device, process, method, act, or other instrumentality practices the claimed invention, the party shall identify, separately for each asserted claim, each such apparatus, product, device, process, method, act, or other instrumentality that incorporates or reflects that particular claim ("Embodying Instrumentality");
Chief Judge Connolly's Form Scheduling Order for Non-Hatch-Waxman Patent Cases in Which Infringement Is Alleged.
In moving to strike, the accused infringer alleged that the amended responses violated this provision. The Court called that "classic legerdemain" because ...
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 …
We've talked a lot about how hard it can be to plead indirect infringement and willfulness before Chief Judge Connolly. He set forth his views on the subject in ZapFraud, Inc. v. Barracuda Networks, Inc., C.A. No. 19-1687-CFC-CJB (Mar. 24, 2021), where he held that a complaint cannot form the basis for an allegation of willful infringement in the same action:
[I]n the absence of binding authority to the contrary from the Federal Circuit and Supreme Court, I will adopt the rule that the operative complaint in a lawsuit fails to state a claim for indirect patent infringement where the defendant's alleged knowledge of the asserted patents is based solely on the content of that …
I will, in fact, die on this hill—at least until something from the Court shows I'm wrong.AI-Generated, displayed with permission
Last year we had a post entitled "Use This One Simple Trick to Not Get Your Summary Judgment Motion Instantly Denied." That post related to motions before judges who require a concise statement of facts with summary judgment motions. The "one simple trick" was that, rather than including a long list of atomic facts like "x said this at deposition" and "lines x:xx - y:yy of the patent specification say z," you state the actual material fact that you are relying on and cite those atomic facts as support for the broader fact.
"Just imagine this page holds one of the in-depth and fulsome post-grant review petitions we're totally going to file on these patents"Kelly Sikkema, Unsplash
I know some readers probably want an update on the protective order hearing. I expect that will be a hefty post of interest to all D. Del. litigants—but I need to get the transcript first. In the mean time, though, please enjoy this spare and jargon-filled post which is only going to be of interest to patent practitioners.
We've talked about pre-institutionstaysbefore, and how hard they are to achieve. What's even harder? A stay of patent litigation before a patent challenge has even been filed.
I couldn't find a real image of a border that is "porous to the extent that it is decipherable"AI-Generated, displayed with permission
Even 10+ years after Alice, the standard for invalidity under § 101 feels inconsistent, and there is a lot of room for any two human beings (judges or otherwise) to look at the same patent and have different views. This is particularly true when you factor in the procedural hurdles, which ultimately give the Court a range of options on when to deal with a § 101 motion (e.g., before summary judgment, at summary judgment, or at trial/post trial).
So, when a D. Del. judge issues a § 101 decision, I often think it often …
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