Don't let your discovery motions sit! We got another opinion this month denying a discovery motion in part due to a party's delay, this time from visiting Judge Bibas of the Third Circuit:
ORAL ORDER: I DENY Vertex's motion to strike, D.I. 178 . I apply the Pennypack factors: (1) the surprise or prejudice to Vertex; (2) the ability of Vertex to cure the prejudice; (3) the likelihood of disruption of trial; (4) the bad faith or willfulness involved in not complying with the disclosure rules; and (5) the importance of the evidence sought to be excluded. Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 90405 (3d Cir. 1977). Lupin had disclosed enough that …
Just an update: the parties and the Court made it part way through the Rein Techhearing today, but it ultimately had to be adjourned, to be rescheduled at a later time. We'll likely post another update on the substantive protective order violation issues—which are fascinating—after the rescheduled hearing.
We've been following a series of hearings in Rein Tech, Inc. v. Mueller Systems, LLC, C.A. No. 18-1683-MN (D. Del.), a now-dismissed case where the inventor attempted to serve the expert witness but was excluded due to protective order violations.
The defendant later alleged that the same inventor again violated the protective order by continuing to prosecute another patent application in the same field, despite a prosecution bar.
In response, counsel for the inventor argued that the inventor did sign the prosecution document, but did not "prosecute" the patent:
Although signed by [the inventor], he did not prosecute the ‘454 patent application [Request for Continued Examination] and response that was submitted . . …
It's not just you. Multiple firms in town have been experiencing issues with the Court's PACER system since yesterday. Most parts of the website work fine, and you can still make filings. But one of the most critical part of the site, pulling a list of docket items in a case, appears to be down. Others report that it's still working.
This feature is something I use multiple times per day. When I'm making a request of the Court, I like to check the docket to make sure I have the most up-to-date info about what's going on in the case. I also like to use exactly the same documents thatthe Court sees. Plus, it's helpful …
Typically, final judgment is the end of the road for a patent case. It's right there in the name. Sometimes, however, it is just a further maneuver in a forever war which the parties have little hope of resolving in their lifetimes.
There are, of course, only limited legal avenues for keeping the fires burning after final judgment. Today's case (oddly, the same as yesterday's case) deals with contempt.
The prompt was "the very embodiment of contempt." I think the bot has some personal issues to resolve.AI-Generated, displayed with permission
As we discussed yesterday, BioDelivery Sciences International, Inc. v. Alvogen Pb Research & Development LLC, C.A. No. 18-1395-CFC-CJB (D. Del.) had proceeded to judgment years ago, with the plaintiff generally prevailing.
Like most ANDA cases, the judgment contained a clause enjoining the defendant from making/selling/using the "ANDA Products" until after the expiration of the infringed patents. D.I. 308.
Years later, the defendant filed a new ANDA based on the same listed drug, apparently reformulated to design around the relevant patents. The Plaintiff, in addition to filing a new ANDA case against this ANDA, brought a motion to enforce the judgment.
Judge Connolly denied the motion, finding that it was procedureally improper:
I need not decide whether the products covered by ANDA No. 220582 are an "ANDA Product" covered by paragraph 7's injunction because I agree that the motion is procedurally improper, and I will deny it for that reason . . .
I agree that to the extent BDSI seeks to enforce the injunction in paragraph 7, it must do so by way of a contempt motion. An injunction is "an equitable decree compelling obedience under the threat of contempt[.]" And thus "injunctions are enforced through the district court's civil contempt power." Accordingly, "[i]f a party contends that another party is violating an injunction, the aggrieved party should move the court for an order to show cause why the other party should not be held in civil contempt."
D.I. 423 at 9-10 (internal citations omitted).
It's not clear from the opinion whether the door is technically open for a further motion for contempt. However, given that the Court took the parties to task for the "waste of judicial resources" and "obstreperous behavior by both sides to a degree I have rarely experienced as a judge" I would not be at all surprised if the plaintiff just let it lie and continued with the new case. Only time shall tell.
Just a heads up for D. Del. practitioners: The Court announced today that it will be closed on Friday of this week, 12/26/2025, in addition to being closed on Wednesday and Thursday as previously scheduled. This is due to an executive order issued last week. Be sure to consider whether this impacts any of your deadlines!
I couldn't find a recognizable image of a time machine that wouldn't potentially subject us to copyright issues, so you get this lovely clock instead.Matt Seymour, Unsplash
The Wayback Machine can be incredibly helpful in all kinds of cases. It allows you to pull previous copies of a website, seeing how it looked months or years ago. You can pull old local rules from circa 2007 and see the actual PDF; you can find out if that prior art product was on sale back in 2010; you can you can see exactly when the opposing party started (or stopped) marking their products.
But can the Court take judicial notice of a Wayback machine page? Judge Fallon addressed that …
The District of Delaware local rules prohibit additional briefing on motions beyond the opening, answering, and reply briefs permitted by the rules, and the "citation of subsequent authorities":
Except for the citation of subsequent authorities, no additional papers [beyond the response to a motion and a reply brief] shall be filed absent Court approval.
It's not uncommon for parties to find themselves in a position where, while discussing settlement, they end up filing a series of short (or not so short) extensions over a potentially lengthy period in order to give themselves time to negotiate.
Why not just stipulate to a full-on stay? The problem with a complete stay is that it removes all pressure to actually get the settlement done. I've seen cases where one side wanted to push the settlement forward, but would have had to essentially move to lift a stay to apply any kind of pressure. That's not where you want to be.
Sometimes, implementing the process as a series of stipulated extensions of a deadline, such as an answer deadline, can help maintain some pressure for each side to continue to negotiate while not actually requiring the parties to litigate. There is always the implicit threat that, if the parties can't agree on a further extension, the case will start right back up again.
As we've noted before, though, eventually the Court may want an update. The exact number of repeated extensions that a particular judge will tolerate likely depends on the circumstances, but it's not infinite.
We got another data point on this last week after the parties in a patent action before Judge Bryson filed 7 stipulations to stay an answer deadline. The Court granted the newest stip, but asked in the accompanying oral order for a status update within 4 days:
ORDER: This stipulation to extend time (D.I. 249 ) is granted. However, this is the seventh stipulation to extend time for defendants to file their answers and counterclaims with nearly identical language. Accordingly, parties are directed to file a joint status report with the court no later than December 12, 2025, at 5 p.m. Eastern Time setting forth what progress has been made toward settlement of this matter, what remains to be done, and when the parties expect this matter to be resolved. Signed by Judge William C. Bryson on 12/08/2025. (mpb) (Entered: 12/08/2025)
Colt International Clothing, Inc. v. Quasar Science LLC, C.A. No. 22-213-WCB, D.I. 250 (D. Del.).
On the fourth day, the parties filed a notice of settlement and promised to dismiss the case.
Missing a notice of appeal deadline is a nightmare scenario for an attorney. It's easy to imagine how it could happen: Final judgments can come at somewhat random times, and it's not a deadline that PACER flags for counsel. And, depending on how things go, it may be difficult or impossible to get the deadline extended. If that happens, that's it: your case may be over.
It looks like this nightmare almost played out in a recent District of Delaware case.
In Belden Canada ULC v. CommScope, Inc., C.A. No. 22-782-RGA (D. Del.), the Court entered a final judgment on October 14, 2025. The notice of appeal was due Thursday, November 13, 2025 …
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