One day we should create the IP/DE award for "most creative and unsuccesful argument."bamagal, Unsplash
This is a new one. In Bardy Diagnostics, Inc. v. iRhythm Technologies, Inc., C.A. No. 24-1355-JDW (D. Del.), the plaintiff moved to amend to add two recently-issued patents to the case.
It filed its motion after the deadline to amend, which meant that it needed to show FRCP 16 good cause which, in this context, means that it had to show that it was diligent.
The defendant opposed the motion by arguing that the plaintiff was not diligent because (get this!) it waited too long to file its patents:. Not-at-all-shockingly, the Court did not go for that:
As Nate noted a couple of weeks ago, "we've milked . . . an astonishing 8 posts out of the saga of Rein Tech, Inc. v. Mueller Systems, LLC." I think the actual count is now 11, but I truly expect that this will be the very last one.
No promises, of course.
Yesterday, the Court issued its opinion on the defendant's sanctions motion, filed after repeated violations of the protective order. As we've discussed, this time the inventor, who is also an attorney, continued to prosecute a patent in the same field despite having seen the defendant's Attorneys' Eyes Only production, and despite the protective order's prosecution bar.
There's nothing better than a case with good facts. I mean, I'm a lawyer, I think the law is pretty interesting. But 101 jurisprudence doesn't usually make for the best cocktail party chatter (unless you're surrounded by other lawyers, which doesn't normally make for the best cocktail party).
AI-Generated, displayed with permission
Judge Hall had a fun case yesterday that had some pretty fun facts for your next gathering with the normals, as well as some neat law for your next lawyer Hoedown.
Yangjiang Xinhe Houseware Co., Ltd v. Telebrands Corp., C.A. No. 25-365-JLH (D. Del. Feb. 11, 2026) looked like a typical DJ action. The plaintiff was allegedly a foreign supplier of hoses to various resellers …
Last week I posted about an order in Koninklijke Philips N.V. v. Quectel Wireless Solutions Co. Ltd., C.A. No. 20-1707-CFC-CJB (D. Del.) where, after the Court had specifically warned the parties to make their experts available for Markman, a party then attempted to reschedule the Markman hearing because its expert was unavailable. It did not go well for them.
Shortly after the Court denied the plaintiff's request to move the hearing, the plaintiff filed an unopposed motion to present its expert testimony remotely, so that the expert could attend his trial and also provide testimony at the Markman hearing set for the same day.
Lawyers like to play the field. We like to keep our options open. We like to respond to straightforward questions about our plans by listing a series of things we might do. We are, in a word, difficult.
AI-Generated, displayed with permission
But, as any veteran of the dating wars can tell you (not me! I got out early), playing the field can have a real downside.
That was the lesson of VMware LLC v. Siemens AG, C.A. No. 25-353-RGA-LDH (D. Del. Feb. 10, 2026). VMware asserted claims of copyright infringement. The defendants moved to dismiss on forum non conveniens arguing that a license agreement between the parties contained a forum selection clause that required claims "arising …
The Federal Rules of Evidence ought to prohibit the mid-afternoon playback of recorded deposition testimony.AI-Generated, displayed with permission
Judge Bryson issued an opinion on Friday looking at a perennial trial question: can one side play the other side's 30(b)(6) testimony in its case-in-chief, even if the witness who gave the deposition testimony is available and testifying at trial?
When we talked about this question back in 2024, Judge Williams had held that, under the circumstances of a different case, a party could only play the other side's 30(b)(6) testimony for impeachment, not in the first instance. Jazz Pharmaceuticals, Inc. v. Avadel CNS Pharmaceuticals, LLC, C.A. No. 21-691-GBW, D.I. 545 (D. Del. Feb. 20, 2024).
Obviously, there is a big difference between offering deposition testimony in the first instance, and offering it only for impeachment. That was particularly true in the Jazz Pharmaceuticals case, where the oral order seemed to contemplate using the testimony for impeachment only of the specific designee who had testified.
(Given that 30(b)(6) testimony is the testimony of the party, not a specific witness, the opposing party could argue it should be available to impeach any of the party's witnesses.)
Judge Bryson's opinion came to the opposite conclusion than Judge Williams's order. He held that a party can play the opposing party's 30(b)(6) testimony if ...
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)
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