A very blurry picture of a claim from one of the asserted patents, highlighting roughly the text that the patentee seemed to seek summary judgment on.RE47,031
It's common for parties to not dispute the presence of some portions of a patent claim in an accused product. For example, in a patent for a "computing device" with software meeting certain limitations, the defendant may not dispute that the presence of a "computing device"—but might vigorously dispute that the software it runs meets the remaining claim limitations.
In most patent cases, the presence of at least some portion of the claim limitations in the accused product is not disputed—and often, quite a few limitations are not disputed. But the parties regularly …
A patent figure. It has an indisputable date, a specific technical diagram, and a description. How much clearer can you get?U.S. Pat. No. 777,777 ("Hat-Clasp")
On Friday, Judge Williams resolved a case narrowing dispute in Nexus Pharmaceuticals, Inc. v. Execla Pharma Sciences, LLC, C.A. No. 22-1233-GBW (D. Del.).
The parties disputed the numerical limits for case narrowing. The Court adopted a proposed limit of 4 obviousness combinations per claim, with no more than eight combinations total, and 10 total prior art references. The patentee offered to narrow to 7 asserted claims.
The Court noted that the order was consistent with its precedent, in which it allowed no more than 10 claims, 10 prior art references, and 20 prior art arguments.
The Court also addressed what counts as a "reference." The patentee tried to limit the accused infringer so that every document counts as its own reference, even if the asserted obviousness combination is a prior art device, product, or system itself rather than the documents that describe that system.
"Just imagine this page holds one of the in-depth and fulsome post-grant review petitions we're totally going to file on these patents"Kelly Sikkema, Unsplash
I know some readers probably want an update on the protective order hearing. I expect that will be a hefty post of interest to all D. Del. litigants—but I need to get the transcript first. In the mean time, though, please enjoy this spare and jargon-filled post which is only going to be of interest to patent practitioners.
We've talked about pre-institutionstaysbefore, and how hard they are to achieve. What's even harder? A stay of patent litigation before a patent challenge has even been filed.
Plaintiff's principal with his towering pillar of hatsAI-Generated, displayed with permission
If you happen to be in Wilmington, DE tomorrow—perhaps as a summer associate—and feel like attending an interesting hearing, it could be worth stopping by Judge Noreika's Courtroom 4A at 10am.
The hearing involves an alleged protective order violation by plaintiff Rein Tech and its principal. See Rein Tech, Inc. v. Mueller Systems, LLC, C.A. No. 18-1683-MN, D.I. 170 (D. Del. May 16, 2025).
An Alleged Disclosure of AEO Information And an Alleged Prosecution Bar Violation
Rein Tech's principal apparently wears many hats. In addition to being the head of Rein Tech, he is also the named inventor on the asserted patents, the prosecuting attorney …
Wow. In Belvac Production Machinery, Inc. v. Adonis Acquisition Holdings, LLC, C.A. No. 25-166-JLH (D. Del.), the plaintiff moved to compel the defendant to preserve all random access memory ("RAM") copies of certain copyrighted software that is apparently used to operate equipment.
To me, this is a wild motion—although it takes a bit of knowledge about computer memory to show why.
Some Background on Computer Memory
Unlike Nate, who wisely avoided expounding on analytical chemistry, I feel like some background on how computer memory works is needed here, to help understand just what plaintiff is asking for. The parties didn't include this in their briefing—but they probably should have explained things a bit …
I couldn't find a real image of a border that is "porous to the extent that it is decipherable"AI-Generated, displayed with permission
Even 10+ years after Alice, the standard for invalidity under § 101 feels inconsistent, and there is a lot of room for any two human beings (judges or otherwise) to look at the same patent and have different views. This is particularly true when you factor in the procedural hurdles, which ultimately give the Court a range of options on when to deal with a § 101 motion (e.g., before summary judgment, at summary judgment, or at trial/post trial).
So, when a D. Del. judge issues a § 101 decision, I often think it often …
An embodiment of the lens at issue—yes, this is a single claim "element"U.S. Pat. No. 6,844,990
Judge Burke issued a fascinating invalidity decision yesterday in Immervision, Inc. v. Apple, Inc., C.A. No. 21-1484-MN-CJB (D. Del.). It addresses an invalidity issue I had honestly never seen litigated—a "'single means' claim"—and, along the way, it addresses what a claim "element" is and when the "clear and convincing" standard applies to invalidity.
Basically, the whole thing is a page-turner for someone who deals with these issues, and well worth reading. I'll outline some of the most interesting points below.
"Single Means" Invalidity Is a Thing
The invention at issue is an optical lens. The opinion involves an independent claim …
I know that I promised a hard-hitting post on infringement stats in ANDA cases, and I was really going to post the update this time—really! But then the very first case I read had a neat issue that deserved a post on its own. We can only hope I remember to get to it next week.
In the meantime, today I have the rare case where the Court actually granted an adverse inference as a discovery sanction.
Central to infringement in Novartis Pharms. Corp v. MSN Pharms Inc., C.A. No. 22-1395-RGA, D.I. 523 (D. Del. July 11, 2025), was a factual issue that is only of interest to analytical chemistry …
Many years ago now, when I was still in the full flagrant flower of youth (38), I wrote a post discussing the relative rates at which various drug patents—compound, method of treatment, and formulation—were found invalid in Delaware.
Not analyzed at the time (because who has the time?) was the question of how often these various types of drug patents are found to be infringed in ANDA cases. I'll have a fuller post on this later in the week, but my guess is that it goes compound > method of treatment > formulation. If it turns out I am wrong, you will never be able to prove it because I will edit this post immediately.
AI-Generated, displayed with permission
In any case, method of treatment patents often follow trends with certain themes going into and out of vogue, so I suspect today's opinion from Chief Judge Connolly in Novo Nordisk, Inc. v. Mylan Pharms. Inc., C.A. No. 23-101-CFC (D. Del July 22, 2025), will be of general interest to our audience.
The patent there—for blockbuster drug Wegovy—required that the drug be administered "without another therapeutic agent," which the Court construed to mean "administered without another therapeutic agent as part of the method for reducing body weight, or for treating the conditions of diabetes or hypertension."
Mylan argued that their ANDA label could not induce infringement because, although it cautioned against using the drug with other GLP-1 inhibitors, it was agnostic as to any other weight loss drugs, merely saying that "[t]he safety and efficacy of coadministration with other products for weight loss have not been established."
Plaintiff argued that the this was sufficient to establish inducement because "the proposed label does not require patients to receive other treatment beyond a reduced-calorie diet and physical activity, 'physicians will inevitably prescribe Mylan's ANDA Product without another therapeutic agent.'"
Delaware FBA members should already have received an e-mail, but I know that some missed it or it got filtered out as spam, so here is a public service announcement. The 2025 District of Delaware Bench and Bar will take place at the Chase Center at the riverfront in Wilmington on September 25-26.
The District of Delaware Bench and Bar is a great event, and if you're a reader of this blog, it's well worth attending. It's great to see the judges and frequent litigators in person, and the judges on the panels always have useful insights. We'll likely have a summary post here on the blog, but the rules normally prohibit attribution, so you won't get the full effect …
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