In the District of Delaware, Daubert motions (i.e., motions to exclude expert testimony under FRE 702) are normally due at the same time as case dispositive motions, and often share a page limit.
This makes a lot of sense, since Daubert motions are often more or less dispositive of central substantive issues in the case. Sometimes, if the party cannot present expert testimony on a particular substantive issue, they essentially just lose (although for other things, not so much).
Often, parties will present their primary Daubert issues at the deadline, only to realize later on that there are other lingering issues that fit the Rule 702 case law. …
How many attorneys would have made the choice to re-assert § 101 at trial after conclusively losing on that issue at the MTD stage? Not many, I'm guessing.Oliver Roos, Unsplash
I still remember when, as a first-year associate (circa 2009), a senior attorney explained to me that courts will not hold a patent "valid," and instead will normally only say that it is "not invalid." It seemed like a bit of a silly distinction at the time, but it actually makes perfect sense, and it has come up again and again in my practice since then.
Courts do not typically hold that a patent is "valid" because that would suggest it is impervious to future challenges. Instead, courts often hold that a patent is "not invalid," i.e., that the moving party in a case before the Court failed to show that the patent was invalid due to some circumstance. That language recognizes that another party on another day might yet prove the opposite: that the patent is invalid.
This came up recently in Laboratory Corporation of America Holdings v. Natera, Inc., C.A. No. 21-669-GBW (D. Del.). In that case, the defendant had originally brought a motion to dismiss on § 101 grounds, and Judge Stark denied it. Id., D.I. 28 at 7.
Now, almost four years later and in the lead-up to trial, the plaintiff moved in limine to preclude the defendant from re-raising its failed § 101 argument:
Plaintiff "seeks to preclude Natera from presenting argument or evidence regarding patent eligibility of the Asserted Patents under § 101." . . . Plaintiff contends that such preclusion is warranted because (purportedly) "[t]he Court has already spoken on patent eligibility and has ruled that the Asserted Patents are directed to eligible subject matter."
Id., D.I. 325 at 4.
The Court denied the motion, and will permit the defendant to re-raise its § 101 argument at trial. The Court offered ...
One motion, two motion, three motion, fourAI-Generated, displayed with permission
Hello again dear friends and readers. In the time the blog has been on hiatus I have built a fence 20 feet high and 20 feet long, gained 400 ELO in chess, and seen many old friends for the first time in ages. But the blog is back, and those days are behind me as I feed more content into its insatiable maw. So let's get right into today's case.
You'll all be aware that a couple of our judges require litigants to rank their summary judgment motions. For instance, and relevant to today's case. Judge Williams' form scheduling order states that "The Court will review the party’s summary …
Aaaand we're back! We extended the blog break a bit because I was traveling last week to participate on a panel about AI-related litigation at the Sedona Conference. There have been several interesting AI-related copyright decisions this year (including in Delaware), and we may post about them down the line.
For now, I wanted to alert everyone that Judge Burke posted a set of "Tips Regarding Markman Briefing and Hearings" on his website.
The document has 10 total tips, all directed towards Markman practice before Judge Burke. But I would say that it is definitely worthwhile reading for any Delaware litigator. The tips include guidance regarding (spoiler alert):
The number of terms Judge Burke will hear and decide …
Obviously, damages issues like a hypothetical negotiation date don't come up very often in an ANDA case. Mallinckrodt PLC v. Airgast Therapeutics LLC, C.A. No. 22-1648-RGA, D.I. 461 (D. Del. Aug. 20, 2025), was a little different, however. In that case, the Defendant Airgas had actually filed its ANDA12 years before the case was filed, and before any of the asserted patents were added to the Orange Book. Accordingly, there was no 30-month stay.
By the time summary judgment came around, Airgas had launched its product and damages were thus in play. The parties disputed whether …
In Vanda Pharms., Inc. v. MSN Pharms., Inc., C.A. No. 24-505-JLH (D. Del. July 31, 2025), the Plaintiff accused various generic drug manufacturers of violating the Lanham by allegedly making false statements in their label and advertisements. In particular, Plaintiff alleged that the Defendants described Plaintiff's product "Hetlioz" as the brand reference for their generic products when "the reference product used in Defendants’ Bioequivalence Study was not actually Hetlioz, or because that study was so flawed that it undermines any assertion that Defendants’ product is bioequivalent to Hetlioz." Id. at 14 (quoting complaint).
Judge Burke issued an oral order on Thursday in OmniVision Technologies, Inc. v. RE Secured Networks, LLC, C.A. No. 24-187-JLH-CJB (D. Del.) expressing frustration due to the parties' inadequate claim construction briefing, and the resulting "inefficient" Markman hearing.
The parties submitted their joint claim chart back in March, identifying seven groups of terms. For three of the seven groups, the patentee offered positions like "Needs no construction" or "Not indefinite." D.I. 78-1 at 2-6. Some of these term groups were a bit odd (including, for example, a group called "preambles," which addressed three separate preambles across six claims spanning three patents). Counted separately, the parties sought to construe more than the 10 terms …
You may remember this guy from our original post.AI-Generated
In February 2023, we wrote about a case by Getty Images against Stability AI involving copyright claims on AI-generated content. That case was filed near the start of the current AI mania, and it looked to potentially be significant.
Since then, the case has suffered from some party-driven delays. The parties agreed to extend the answer deadline, and then Getty Images filed an amended complaint. D.I. 12, 13. This was followed by another stipulated extension, and a motion to dismiss or transfer. D.I. 15, 16.
The Court then granted a motion for jurisdictional discovery, D.I. 30, and that process seems to have gone on for about a year, until Getty …
In our recent post about the Court finding a protective order violation by an inventor / principal / expert / man of many hats, we promised a second post about how the accused infringer used PDF metadata from PACER in a clever way to establish the protective order violation. This is that second post.
Basically, the parties disputed who had edited a document containing Attorney's Eyes Only information. The inventor had switched counsel, but the moving party claimed that the edits were made by the inventor, not counsel.
Screenshot of the metadata for a highlight as it appears in Adobe AcrobatD.I. 81-17
The moving party showed that the PDF with the AEO information included highlights, and that the metadata …
Everyone has a favorite state. Maybe it's where you grew up. Maybe it's where you went on vacation as a child. Maybe it's just the first state?
AI-Generated, displayed with permission
Not everyone is so fortunate to live in their favorite state -- but if you play your cards right, you can apparently choose to be sued there.
The issue came up last week in Guangzhou Lightsource Elecs. Ltd. v. Pine Locks, C.A. No. 24-543-JCB, D.I. 30 (D. Del. Aug 5, 2025). Pine Locks (incorporated on the Isle of Mad) had allegedly filed a complaint with Amazon requesting that some of Gaungzhou's (a Chinese company) products be taken down because they infringed Pine Locks' patents. Guangzhou then …
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.
