If we keep using this image, people are going to think that all of Wilmington is on the water. Imagine their surprise when they arrive!Andrew Russell, CC BY 2.0
This week, the D. Del. website posted an opening for a term law clerk with Magistrate Judge Hatcher.
As most of our readers probably know, there are two types of judicial clerks: permanent and term. A permanent clerk is, well, permanent. They stay indefinitely. A term clerk stays for, typically, a one-year term, most often starting in September.
Serving as a term clerk is an amazing opportunity for an attorney and I highly recommend it. It gives you an incredible perspective on how the Court works, how judges manage …
The Looming Parade of Horribles, AI-Generated, displayed with permission
I’m partial to percussion and noticed that there was a gaping hole of staccato in the rising swell of the IPDE music videos, subtle though it may have been in the background of Andrew's singing and Nate’s interpretive dance performances. Leaving the snare drum at home, today I chime in only with the lonely voice of a wistful triangle to supplement this week’s stories with a tale from a faraway land—the Eastern District of Texas.
Why do we in Delaware care about this opinion? It gave me a fresh appreciation for the orderly composition of Delaware scheduling orders. It involved a problem that cannot arise in a District of Delaware …
We first posted a reminder that reverse DOE and ensnarement exist back in 2021, and then again in 2023. But here, now, in 2025, we just got some nice guidance from the Court about ensnarement, and it seems like a great time to put out another reminder.
What Are They?
The Reverse Doctrine of Equivalents deals with a situation where the accused product literally reads on the claims, but is not actually doing what the patent is meant to cover. As we noted last time:
The [reverse doctrine of equivalents] rescues from infringement devices that literally satisfy the elements of a claim but perform the same function of the invention in a …
I hope some of you saw the musical video Andrew posted yesterday before it was taken down in a copyright strike by the Prince Estate due to his eerily pitch perfect parody. The costumes alone were worth the price of admission.
Honestly the photo doesn't do it justiceAI-Generated, displayed with permission
Mallinkrodt Pharms. Ireland Ltd. v. Airgas Therapeutics LLC, C.A. No. 22-1648-RGA (D. Del. Feb 12, 2025). presented an interesting twist on the tried and true preliminary injunction formula.
The likelihood of success analysis was pretty standard (although it touched on one of my favorite issues—drug interaction). Ditto for irreparable harm, with the Court finding allegations of lost sales and …
I don't talk about it much on the blog, but my other hobby (beyond writing about litigation and the District of Delaware for funsies, photography, and having an absurd-by-today's-standards number of children) is writing and speaking about AI and the law. I've been speaking about AI issues on panels at conferences since 2018. Most recently, I moderated a Sedona Conference panel about Copyright and AI.
In the context of copyright and AI, the question of whether training an AI model on copyrighted content is fair use is basically life-or-death for a lot of current AI models. Big generative models like ChatGPT are (typically) trained on giant masses of data collected from books, …
I am pleased to announce that, starting with Andrew's next post, we will be pivoting to a new format. No longer will we be analyzing the developments in IP law with mere written words. Instead, we will be creating Schoolhouse Rock style musical videos. Andrew's surprisingly moving singing voice will be accompanied by my own interpretive dance—leading you through the intricacies of the days' cases like a bee describing the way to honey.
This is perhaps my favorite picture I've used on the blogAI-Generated, displayed with permission
The subject of today's post, CosmoKey Solutions GmbH & Co. KG v. Duo Security, Inc., C.A. No. 18-1477-CFC-CJB, D.I. 413 (D. Del. Feb. 7, 2025) will also be the subject of our first song, "Sanction Sanctuary."
The title comes from the plaintiff's motion for sanctions -- unusual in the district outside of the Pennypack context. The issue there was that the defendant had produced almost all of its documents after the substantial completion deadline, resulting in extra work for the plaintiff, who sought fees as compensation. The defendant argued that the late production was not sanctionable because it was caused in large part by an error in their document collection that had initially missed all documents before 2018.
We've posted twicerecently on Magistrate Judge Tennyson's practices regarding how long the parties should meet-and-confer before bringing a discovery dispute. In the prior posts, the parties presented a single discovery dispute issue. The parties initially met-and-conferred for 12 minutes, and the Court sent them back to meet-and-confer further. The Court later OK'd the dispute after they spent a total of 31 minutes on the issue.
On Friday, the Court issued an order in another case giving some more insight into this meet-and-confer requirement. In Media Content Protection LLC v. Dell Technologies, Inc., C.A. No. 20-1240-CFC-EGT (D. Del.), the parties filed a motion to raise three discovery issues with the Court, including two …
All of the Delaware judges have rules in their form scheduling orders limiting the circumstances in which summary judgment motions can be filed. Most notably, each forbids the filing of summary judgment motions in ANDA cases absent leave. In other patent cases, SJ motions cannot be filed more than 10 days before the deadline for dispositive motions without leave.
As part of my ongoing series of posts about analytics when I have nothing else to write about (why can't I find Al Capone's cave?), I've compiled some statistics on how likely these motions are to be granted, based on the issue (infringement, validity, something weird).
Looking at all the cases for the last three years (and a bit extra so I could get to 20 and not have to do math) the general success rates for these is a pretty abysmal 20%. Validity issues fair a bit better at about 29%. Infringement/noninfringement also beat the average at about 25%. Weirdly, inequitable conduct seems to fair the worst, at a whopping 0.0% (rounding up).
I've got some more analytics on specific judges, but I'm saving them in case I need another one of these on Thursday.
We were a bit slow on the draw on this one. You may have already read about it in Law360. But it's significant enough that I think we should post about it anyway.
Last month, in Vestolit GmbH v. Shell Chemical LP, C.A. No. 24-1401-CFC (D. Del.), two applicants filed a 28 U.S.C. § 1782 application seeking leave to serve subpoenas on a company in the United States to get discovery related to a foreign proceeding.
The application itself referred only to subpoenas against the company, but the proposed order incorporated a subpoena against an individual, who was not mentioned in the application itself.
The Court rejected the application, at least initially, …
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