It's a simple fact, and it's the work of a blogger to cozy it up in a middling metaphor and accompanying stock photo
[Eds. Note - I've been bugging Andrew to add functionality for Gifs, which I think will really elevate the blog. Consider this my formal request for the Court to implement the same feature on Pacer].
But one can trust Judge Andrews to put it in plain, quotable, terms.
[Eds. Note -- please let me know if you've ever quoted the blog …
I never thought we'd get to re-use this image of someone frantically flying from Texas to Delaware (approximately...), but here we are.AI-Generated, displayed with permission
It's important to pay attention to the things the Court tells you at the scheduling conference.
At a scheduling conference in Koninklijke Philips N.V. v. Quectel Wireless Solutions Co. Ltd., C.A. No. 20-1707-CFC-CJB (D. Del.), back in September, 2025, the Court set a date for the Markman hearing, and emphasized the importance of experts being there:
So let's do the Markman February 10th at 9:00 a.m. Now, I'm telling you now, you should have your experts prepared to be there.
On Monday, I wrote about how the Court had refused to entertain a stipulated dismissal until the plaintiff's attorney filed a pro hac motion.
I wanted to provide an update. From the docket, it looks like the case has resolved. On Friday, the plaintiff filed an ordinary pro hac motion. The Court granted it this morning (Tuesday), without any issue, and then granted the stipulated dismissal. See Secure Matrix LLC v. Dress Barn Omni, Inc., C.A. No. 25-1530-CFC, D.I. 15 (D. Del. Feb. 4, 2026).
The Court did not require the parties to file a new stipulation, or to take any action beyond the filing of the pro hac motion.
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)
Are these ancient and inviolable rules from times of old? Nope—at least, not all of them.Unknown
When I first started practicing in the District of Delaware, in the decade before last, I was told there are certain rules of citation that should always be followed in filings here. I've heard these repeated by others as well.
Most of these fall into the bucket of "we do it this way because the Court prefers it," which is—obviously—a great rule of thumb. But does the Court really prefer that the bar do these things?
Out of curiosity (and for the sake of a blog post), I took a look at some of the D. Del.-specific citation rules that I've heard and applied, and whether each of our sitting judges has been applying them lately.
My thought process here is that if a particular judge has a strong preference for one citation style or another, that will probably be reflected in their own written opinions (assuming no law clerks are going rogue and slipping in their own citation preferences).
Below are some of the rules I've heard of or applied myself, and my findings as to whether they seem to reflect current judicial preferences:
"Case numbers in D. Del. should be stated as 00-000-XYZ." True.
In PACER, and in some other districts, case numbers are commonly listed like this:
1:18-cv-01892-JDW-CJB
But in the District of Delaware, that case number would typically be stated in a brief or opinion in a shorter, cleaner form:
18-1892-JDW-CJB
As the District of New Jersey's website helpfully explains, the "1:" at the beginning of the longer-form number indicates a "division" within the District.
The District of New Jersey has three divisions, corresponding to its three courthouses. The District of Delaware, however, only has one courthouse and, to my knowledge, all D. Del. case numbers in PACER are preceded with "1:". The judges mostly omit this part of the case number.
The "-cv-" in the middle of the case number stands for "civil." You may also see "-cr-" for criminal and "-mc-" for miscellaneous cases. But, in D. Del., this is commonly omitted as well. I don't know why this is omitted, really, but I like it. It results in shorter case numbers and rarely if ever causes confusion.
Finally, the Court and practitioners usually omit the leading zeros, at least if the second number is above 99. Rather than "18-01892," they write "18-1892."
"Case numbers must always be abbreviated as 'C.A. No.'" A myth!
Some attorneys are particularly emphatic about this one, I've applied this rule myself.
Accused infringers often get hung up on the issue of representative claims in § 101 motions. Typically, a patent complaint will assert infringement of a patent, and offer specific details of how at least one claim from the patent is infringed. In the District of Delaware, at least, the patentee is free to later assert additional claims, or drop the original claim, without amending the complaint.
This can cause problems for accused infringers when they move to dismiss the entire complaint on § 101 grounds. Sometimes patents have a lot of claims, and the Court may not want to address the full scope of the claims one-by-one, when some of them—or, more likely, most of them—will …
Growing up, my grandparents lived on a lake in far northern Minnesota. Naturally, one of my favorite pastimes (during the 6 hours a year when the lake was not frozen) was throwing objects into the lake to see the splash. Stones, screws, turtles, siblings, turtles and siblings together in a move I called turtle-terror-soup, all were grist for the splash mill.
Andrew E. Russell, displayed with permission
Famously, once the splash settled and the turtles have returned to doing whatever they do, the waters turned calm once again. A passerby moments later would have no knowledge of the true chaos that had just passed. This is the way of true ripples.
Metaphorical ripples, however, are a bit trickier, as evidenced …
"You should grant our stay because it will increase the chances of institution which will increase the chances of you granting our stay"Ihcoyc
This week in MYW Semitech, LLC v. Apple Inc., C.A. No. 25-504-RGA-EGT (D. Del.), the Court rejected a pre-institution IPR stay argument that I haven't seen before.
The accused infringer pointed out that the PTAB now considers whether any pending District Court action is stayed. It argued that, because institution would simplify the case (one of the traditional stay factors), the Court should stay pre-institution to maximize the chances of institution and, thus, simplification:
Under the new bifurcated process, granting a stay increases the likelihood of simplification of the issues. The factors considered by the Director as part of the discretionary denial process include “whether the court granted a stay” in this case. . . . This “evolving circumstance[]” means that granting a stay at this point directly increases the likelihood that [the accused infringer]’s IPRs will be considered on the merits and instituted—which in turns increases the likelihood that these IPRs will simplify the issues for the Court. . . . Thus, a stay promotes the simplification of the issues by encouraging the Director to allow consideration of the IPR on the merits for purposes of institution. The new discretionary denial procedure thus presents a new reality that uniquely warrants a stay while IPRs are at the discretionary considerations stage.
D.I. 65 at 2-3. Judge Andrews denied the pre-institution stay in a three-sentence oral order, and dedicated one of those three sentences to specifically rejecting this new argument:
ORAL ORDER: The motion for a stay pending IPR (D.I. 59) is DENIED without prejudice to renewal should an IPR actually be instituted. There is no reason to interrupt the schedule based on speculation about what might happen in April or June 2026. (D.I. 60 at 2). I note that I do not think that I should grant a stay in order to increase [the defendant]'s chances of getting an IPR instituted.
MYW Semitech, LLC v. Apple Inc., C.A. No. 25-504-RGA-EGT, D.I. 68 (D. Del. Jan. 21, 2026). Good to know!
It's usually easy to spot a dependent claim. They will immediately go to the first person they know at a party and follow them around for the whole evening. They text too much. They may boil your pet rabbit.
They also usually begin with something like "the compound of claim one, wherein the R1 group is cocktail sauce or raspberry jam"
Would you believe we already had this image saved for some reason?AI-Generated, displayed with permission
But what do you make of a claim like this?
A method of performing an assay that monitors cell-substrate impedance, comprising: providing the system of claim 1;
introducing cells into at least one well of said system;
monitoring cell-substrate impedance of said at least one well.
It references a specific system claimed in an an earlier claim (here a fancy sensing wellplate). But it doesn't look at all like the usual form. Instead it pretty much says, "use that well plate we told you about and then look at what happens you big dummy."
(Eds. Note: I should move into prosecution)
The issue came up in the context of a dispute over marking. As shown above, the patent in Agilent Technologies, Inc. v. Axion BioSystems, Inc., C.A. No. 23-198-CJB (D. Del. Jan. 12, 2026) had an independent system claim and these "mixed" method claims that required using the system. It was undisputed that the plaintiff had sold a wellplate that practiced the system claim without marking it.
Years ago, the Federal Circuit held that a party could get around 287 in these circumstances by only asserting the method claims, even if there were other unasserted system claims in the same patent. Crown Packaging Tech., Inc. v. Rexam Beverage Can Co., 559 F.3d 1308, 1316 (Fed. Cir. 2009). But that leaves the question of what to do with a claim like this that actually requires the use of the infringing apparatus?
In granting summary judgement of no pre-suit damages, Judge Burke held that ...
This frozen flower has nothing to do with this post. But it has been cold out there this week!Andrew E. Russell, displayed with permission
Parties in D. Del. cases often stipulate to extend the answer deadline. Typically, a 30-day extension is basically a given. It's rare for a party to deny that initial extension, and I have never heard of the Court denying a stipulated extension like that. It just takes a while for a party to get counsel together and then for those counsel to review the complaint and research the facts.
But, as we note in our page about stipulations, parties sometimes run into trouble when they repeatedly extend the answer deadline to try to …
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.
