A Blog About Intellectual Property Litigation and the District of Delaware


CJB
The Honorable Christopher J. Burke

Judge Burke to Hold Single-Party, Single-Motion § 101 Day

Andrew E. Russell, Dec. 5, 2025
§ 101 Days § 101

Cupcake
Isabella Fischer, Unsplash

It has been a while since we have posted about them, but multiple D. Del. judges have held omnibus hearings to resolve multiple § 101 motions at once, called § 101 days.

Here is my co-blogger Nate's description of District of Delaware § 101 days from one of his posts a few years ago:

The 101 day has been the highlight of the Delaware patent law hearing calendar for many years now. It's an all-day no-holds-barred marathon where questions can come to any party at any time. And the best part is, you can look forward to a decision at the end of the day. It is our Super Bowl and our debutante ball all …
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Court Cancels Trial, and Instead Schedules Third, Fourth, and Fifth Hearings on Summary Judgment

Andrew E. Russell, Oct. 17, 2025
Trial Trial Practice

Calendar
Adam Tinworth, Unsplash

Hearings on motions for summary judgment in patent cases in the District of Delaware can vary in length, but they are typically measured in hours, rather than days.

That's why it was interesting to see the below order by Judge Burke in Scale Biosciences, Inc. v. Parse Biosciences, Inc., C.A. No. 22-1597-CJB (D. Del.) earlier this week.

In it, the Court cancelled a trial set to start Monday, and instead scheduled almost three full days' worth of hearings next week on six pending motions for summary judgment, plus two other motions:

ORAL ORDER: For the reasons discussed with the parties at last Friday’s hearing, the trial previously scheduled to begin on October 20, …
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"Those Words Don't Mean Much to the Court"

Nathan R. Hoeschen, Oct. 7, 2025
Contentions

Contentions are often contentious. The parties argue about how much detail is included, they argue about how to count references and accused products, they argue about what's actually disclosed and what's implied. My conservative estimate is that there are over 10 trillion opinions on contention topics issued every week in the district of Delaware.

Christa Dodoo, Unsplash

Given the fact-specific nature of all these decisions, its often hard to draw bright line rules. Instead, you must engage in the tedious business of explaining why your contentions are really more like the ones in this case, and not at all like the ones in that case, because yadda, yadda, yadda.

But we got a nice neat rule from Judge Burke …

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Court Grants-in-Part Motion to Compel Sales Documents, After E-mails Indicate Defendant May Be "Playing Word Games"

Andrew E. Russell, Oct. 6, 2025
Discovery Disputes Motion to Compel

Scrabble
Phil Hearing, Unsplash

Last week in Eagle Pharmaceuticals, Inc. v. Apotex Inc., C.A. No. 24-64-JLH (D. Del.), the Court partially granted a motion to compel production of sales documents in a patent case.

The plaintiff moved to compel production of communications between the defendant's "sales force":

The Court should order Apotex to produce communications among its sales force regarding the sale, marketing, pricing, and promotion of Apotex’s NDA product. Eagle’s RFP No. 57 seeks: “All communications between Your sales force, sales personnel, or marketing personnel that refer or relate to the sale, marketing, pricing, and/or promotion of Your NDA [New Drug Application] Product, including but not limited to by way of any group chat, texts, text …
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“Whoops, we forgot to put the basis for the motion in the brief.”

Andrew E. Russell, Oct. 1, 2025
Letter Briefs Legal Writing

"Did I forget to say why we should win the motion?" AI-Generated, displayed with permission

When you're drafting a brief, it can easy to get bogged down in all of the in-the-weeds counter-arguments and surrounding issues, and to kind of forget about the main point you need to make.

Years ago, in a patent case, I wound up needing to write three initial drafts of three summary judgment briefs in a week. Fun, right? The first two came together OK. The third one, not so much. It was a complicated motion involving many potential counter-arguments.

I remember thinking the initial draft was pretty good when I clicked send on the e-mail attaching it. How could it not be? In just …

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Made Special, Just For You

Nathan R. Hoeschen, Sept. 30, 2025
Contributory Infringement

Anyone who's been a lawyer long enough to read blogs about will have purchased some custom-made legal accessories. A monogrammed briefcase is a classic, as are cuff links and (for the daring) a bolo tie. The especially theatrical amongst you might get a cape, walking stick or dark altar. The important thing is that it fits, and is monogrammed.

I wasn't sold on the dark altar, but it actually came with a monogrammed cape, so...
I wasn't sold on the dark altar, but it actually came with a monogrammed cape, so... AI-Generated, displayed with permission

This of course, naturally leads me to contributory infringement and especially whether a product is "especially made or adapted for use" in an infringing process and not "suitable for substantial non-infringing use."

This analysis is often factually intense, but it doesn't …

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Don't Fall Into the Late-Daubert Trap

Andrew E. Russell, Sept. 22, 2025
FRE 702 Daubert

Don't be late...
Don't be late... Man Holding Handbag, Andy Beales, Unsplash

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. …

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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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Limits of Lanham

Nathan R. Hoeschen, Aug. 19, 2025
Supplemental Jurisdiction Preclusion

Judge Burke unsealed an interesting opinion last week on the applicability of Lanham act claims to pharmaceuticals.

Sharon McCutcheon, Unsplash

In Vanda Pharms., Inc. v. MSN Pharms., Inc., C.A. No. 24-505-JLH (D. Del. July 31, 2025), the Plaintiff accused various generic drug manufacturers of violating the Lanham by allegedly making false statements in their label and advertisements. In particular, Plaintiff alleged that the Defendants described Plaintiff's product "Hetlioz" as the brand reference for their generic products when "the reference product used in Defendants’ Bioequivalence Study was not actually Hetlioz, or because that study was so flawed that it undermines any assertion that Defendants’ product is bioequivalent to Hetlioz." Id. at 14 (quoting complaint).

The issue was …

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Court Sends Parties Back to the Drawing Board After Insufficient Markman Process That "Waste[d] Judicial Resources"

Andrew E. Russell, Aug. 18, 2025
Markman Briefing Markman

Confusing
AI-Generated, displayed with permission

Judge Burke issued an oral order on Thursday in OmniVision Technologies, Inc. v. RE Secured Networks, LLC, C.A. No. 24-187-JLH-CJB (D. Del.) expressing frustration due to the parties' inadequate claim construction briefing, and the resulting "inefficient" Markman hearing.

The parties submitted their joint claim chart back in March, identifying seven groups of terms. For three of the seven groups, the patentee offered positions like "Needs no construction" or "Not indefinite." D.I. 78-1 at 2-6. Some of these term groups were a bit odd (including, for example, a group called "preambles," which addressed three separate preambles across six claims spanning three patents). Counted separately, the parties sought to construe more than the 10 terms …

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