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.
Disco on disco, babyAI-Generated, displayed with permission
Discovery on discovery -- i.e., discovery asking how you're collecting documents, or when you started your litigation hold, or why all your documents smell like bubblegum -- is generally not allowed in Delaware (and most other districts I'm aware of). To get that sweet, sweet, disco on disco, you need to make a "threshold showing that significant, relevant, and non-cumulative information has been withheld or overlooked." British Telcoms. PLC v. IAC/Interactivecorp,. C.A. No. 18-366-WCB, 2020 U.S. Dist. LEXIS 37271, at *21 (D. Del. Mar. 4, 2020). This is a pretty big ask in the context of a discovery dispute, so we only rarely see the issue come up.
As we've covered exhaustively, Delaware favors the use of contention interrogatories. As discovery requests go, these are often some of the more burdensome ones to deal with, and so the responding party will frequently respond with all manner of possible objections.
One response that I see from time to time is that a contention topic seeks information that is really the subject of an expert report, and thus that no response is necessary until the reports are due.
This is where expert reports come fromAI-Generated, displayed with permission
This was exactly the approach that the defendant took last week in Astellas Pharma Inc. et al v. Sandoz Inc., C.A. No. 20-1589-JFB-EGT, D.I. 779 (D. Del. May 6, …
I've been a Delaware lawyer for a while now, but today is the first time I've seen a case where a party submitted video evidence of a deponent acting suspicious.
Pictured: The deponent, probablySergiu Nista, Unsplash
I gather from the briefing that the case was already quite contentious, as the plaintiff in Inpria Corporation v. Lam Research Corporation, C.A. No. 22-1359-CJB, D.I 506 (D. Del. Apr. 28, 2025) had requested a deposition "focused solely on document creation, retention and storage." Id. at D.I. 293. According to the briefing, the deponent "referenced another screen, positioned to his left, after questions were asked but before providing an answer," but when asked about what was on the screen, he testified …
We've writtenbefore about how delay can kill your discovery motions. We got another straightforward example on Monday in Novartis Pharmaceuticals Corporation v. HEC Pharm Co., Ltd., C.A. No. 20-133, D.I. 340 (D. Del. Mar 31, 2025).
There, the defendants sought depositions of two foreign inventors through the Hague convention. The defendants have known the relevance of the inventors' knowledge since at least July, 2022, but only moved for issuance of letters rogatory in December 2024.
The case was stayed for a portion of that time, but in total, the Court found that there was no good reason that it should have taken so long to seek this discovery:
We first posted a reminder that reverse DOE and ensnarement exist back in 2021, and then again in 2023. But here, now, in 2025, we just got some nice guidance from the Court about ensnarement, and it seems like a great time to put out another reminder.
What Are They?
The Reverse Doctrine of Equivalents deals with a situation where the accused product literally reads on the claims, but is not actually doing what the patent is meant to cover. As we noted last time:
The [reverse doctrine of equivalents] rescues from infringement devices that literally satisfy the elements of a claim but perform the same function of the invention in a …
I am pleased to announce that, starting with Andrew's next post, we will be pivoting to a new format. No longer will we be analyzing the developments in IP law with mere written words. Instead, we will be creating Schoolhouse Rock style musical videos. Andrew's surprisingly moving singing voice will be accompanied by my own interpretive dance—leading you through the intricacies of the days' cases like a bee describing the way to honey.
This is perhaps my favorite picture I've used on the blogAI-Generated, displayed with permission
The subject of today's post, CosmoKey Solutions GmbH & Co. KG v. Duo Security, Inc., C.A. No. 18-1477-CFC-CJB, D.I. 413 (D. Del. Feb. 7, 2025) will also be the subject of our first song, "Sanction Sanctuary."
The title comes from the plaintiff's motion for sanctions -- unusual in the district outside of the Pennypack context. The issue there was that the defendant had produced almost all of its documents after the substantial completion deadline, resulting in extra work for the plaintiff, who sought fees as compensation. The defendant argued that the late production was not sanctionable because it was caused in large part by an error in their document collection that had initially missed all documents before 2018.
When people say that D. Del. is "against litigation funding," they imply that the Court has some kind of general bias against parties who use litigation funding. That's wrong. I've never seen a Delaware judge dislike or rule against a party because the party used litigation funding. And the Court as a whole is certainly not biased against plaintiffs (or defendants), funding or no funding.
With all of that said, I thought it was worth noting that Judge Burke recently ordered production of litigation funding material to the extent it related to the value of the patents.
After reviewing litigation-funding-related documents in camera, he ordered production of those that relate to the value of …
Old timers remember RainDance Techs., Inc. v. 10X Genomics, Inc., Civil Action No. 15-152-RGA, 2016 U.S. Dist. LEXIS 33875 (D. Del. Mar. 4, 2016). After the appendix of forms was banished from the Federal Rules of Civil Procedure, Judge Andrews' opinion in Raindance was among the first in the nation to hold that complaints alleging infringement had to do more than simply list the patent and the product as in the old Form 18.
For a couple years it was the citation of choice in the district for motions to dismiss, with every defendant arguing that the complaint lacked sufficient detail relating their product to the asserted patent claims.
Judge Burke issued an interesting claim construction opinion on Thursday of last week, invalidating a claim where one of two ways to infringe was scientifically impossible.
One claim limitation was set forth in the alternative:
A communications apparatus for transmitting electric or electromagnetic signals over air
Satius Holding, Inc. v. Samsung Electronics Co., Ltd., C.A. No. 18-850-CJB (D. Del. Dec. 12, 2024).
The parties agreed the it is "scientifically possible" to transmit "electromagnetic signals" over air, but the defendant argued that it was impossible to transmit "electric" signals over the air:
Defendants assert that one of those two options—“transmitting electric . . . signals over air”—amounts …
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
