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Court Permits Complaint That Relies on Accused Infringer's Own Patent to Allege Infringement

Andrew E. Russell, Sept. 17, 2025
Motion to Dismiss

Figure 2A -- the figure at issue.
Figure 2A -- the figure at issue. U.S. Patent No. 11,012,647

This is an issue I don't recall having seen before. In VTT Technical Research Centre of Finland Ltd. v. Teledyne Flir, LLC, C.A. No. 25-348 (D. Del.), the plaintiff filed a pretty typical-looking patent complaint, where it alleged infringement of its patent by the defendant's products.

The complaint, however, relied on an allegation that the product was marked as practicing a particular patent, and that figure 2A of that patent showed a circuit that infringed on the plaintiff's patent:

According to VTT, the figure (“Figure 2A”) [of the defendant's own patent] depicts the allegedly infringing functionality. . . . In the complaint, VTT alleges on information …
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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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A Hypothetical

Nathan R. Hoeschen, Aug. 21, 2025
Damages ANDA

Judge Andrews had an interesting decision yesterday on the hypothetical negotiation date in an ANDA case.

Sebastian Herrmann, Unsplash

Obviously, damages issues like a hypothetical negotiation date don't come up very often in an ANDA case. Mallinckrodt PLC v. Airgast Therapeutics LLC, C.A. No. 22-1648-RGA, D.I. 461 (D. Del. Aug. 20, 2025), was a little different, however. In that case, the Defendant Airgas had actually filed its ANDA 12 years before the case was filed, and before any of the asserted patents were added to the Orange Book. Accordingly, there was no 30-month stay.

By the time summary judgment came around, Airgas had launched its product and damages were thus in play. The parties disputed whether …

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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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Getty Images Voluntarily Dismisses AI Action to Re-File in N.D. Cal.

Andrew E. Russell, Aug. 15, 2025
Voluntary Dismissal AI

You may remember this guy from our original post.
You may remember this guy from our original post. AI-Generated

In February 2023, we wrote about a case by Getty Images against Stability AI involving copyright claims on AI-generated content. That case was filed near the start of the current AI mania, and it looked to potentially be significant.

Since then, the case has suffered from some party-driven delays. The parties agreed to extend the answer deadline, and then Getty Images filed an amended complaint. D.I. 12, 13. This was followed by another stipulated extension, and a motion to dismiss or transfer. D.I. 15, 16.

The Court then granted a motion for jurisdictional discovery, D.I. 30, and that process seems to have gone on for about a year, until Getty …

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PDF Metadata From PACER Filing Used to Support Allegation of Protective Order Violation

Andrew E. Russell, Aug. 13, 2025
CM/ECF Metadata

In our recent post about the Court finding a protective order violation by an inventor / principal / expert / man of many hats, we promised a second post about how the accused infringer used PDF metadata from PACER in a clever way to establish the protective order violation. This is that second post.

Basically, the parties disputed who had edited a document containing Attorney's Eyes Only information. The inventor had switched counsel, but the moving party claimed that the edits were made by the inventor, not counsel.

Screenshot of the metadata for a highlight as it appears in Adobe Acrobat
Screenshot of the metadata for a highlight as it appears in Adobe Acrobat D.I. 81-17

The moving party showed that the PDF with the AEO information included highlights, and that the metadata …

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Pick Your Favorite State

Nathan R. Hoeschen, Aug. 12, 2025
Personal Jurisdiction Forum Shopping

Everyone has a favorite state. Maybe it's where you grew up. Maybe it's where you went on vacation as a child. Maybe it's just the first state?

AI-Generated, displayed with permission

Not everyone is so fortunate to live in their favorite state -- but if you play your cards right, you can apparently choose to be sued there.

The issue came up last week in Guangzhou Lightsource Elecs. Ltd. v. Pine Locks, C.A. No. 24-543-JCB, D.I. 30 (D. Del. Aug 5, 2025). Pine Locks (incorporated on the Isle of Mad) had allegedly filed a complaint with Amazon requesting that some of Gaungzhou's (a Chinese company) products be taken down because they infringed Pine Locks' patents. Guangzhou then …

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Judge Wolson Holds That "Oriented Toward a Horizon" Renders Claim Indefinite

Andrew E. Russell, Aug. 11, 2025
Indefiniteness Invalid

I have no idea if the equipment at issue even uses dish antennas, but this one looks cool.
I have no idea if the equipment at issue even uses dish antennas, but this one looks cool. Stellan Johansson, Unsplash

On Thursday, visiting Judge Wolson issued an opinion in SmartSky Networks, LLC v. Gogo Business Aviation, LLC, C.A. No. 22-266-JDW (D. Del.) addressing several summary judgment motions, one of which sought to invalidate a claim of one of the asserted patents as indefinite.

The claim related to a communication system for in-flight wifi, and required that a base station for the equipment emit a radiation pattern that is "oriented toward a horizon." The defendant claimed that that language is indefinite, and the Court agreed:

Claim 1 of the ‘717 Patent requires a radiation pattern that …
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Court Disqualifies Testifying Expert and Sanctions Unrepentant Party for Protective Order Violation

Andrew E. Russell, Aug. 8, 2025
Protective Order Protective Order Violation

Andrew E. Russell, CC BY 2.0

The protective order hearing last week was even more interesting than anticipated. We laid out the background our last post, but here are the basics:

In this patent action, the inventor of the patents-in-suit is also a principal of the plaintiff entity Rein Tech, as well as the prosecuting attorney, the testifying expert, and (likely) a fact witness. He's doing a lot here.

Because he is the principal and a competitive decision maker, and even though he is a testifying expert who apparently issued a report, the parties (more or less) agreed that he is precluded from seeing Attorneys' Eyes Only ("AEO") information under the protective order in the action.

Beyond that, the …

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