As a child, I was frequently frustrated by the differing rules that governed different houses. My house was a shoes-on place, while most of my friends houses were strict shoes in the bucket at the door affairs (this was the early 90s so carpet was the rule).
It usually also had a splotchy brown pattern so that a spilled root beer might pass without notice. The midwest is a practical place.Jon Tyson, Unsplash
I was instructed to remove my shoes at their doors and respect the primacy of house rules. In other realms, a visiting child brought their own rules with them -- perhaps they would be allowed a later bedtime, additional snack, or the high privilege of …
Judge Williams issued an interesting opinion yesterday on a motion to strike.
This is becoming my standard pitcture when I don't have anything more clever. Let me know if you would like me to replace it with a series of cartoons of Andrew and I shruggingBilly, Unsplash
The issue in Cisco Systems, Inc. et al v. Ramot at Tel Aviv University Ltd., C.A. No. 21-1365-GBW (D. Del. Jan. 15, 2025) was the form of the briefing. The case had previously been assigned to Judge Stark, before passing to the vacant judgeship, then Judge Burke. The parties' scheduling order thus followed judge Burke's form order which contained a specific letter briefing procedure for motions to strike with 3-page opening, a 5 page answering and 2-page reply briefs. When the case was reassigned to Judge Williams, the parties kept the old scheduling order.
The parties ultimately raised the motion to strike through Judge Williams' dispute procedures. He issued an oral order that allowed for only 3-page opening and answering briefs without reference to the procedures in the scheduling order:
Having reviewed the parties' joint letter requesting a discovery teleconference (D.I. 146), IT IS HEREBY ORDERED that, by no later than 5:00 p.m. on Tuesday, December 10, 2024, any party seeking relief shall file with the Court a letter, not to exceed three (3) pages, outlining the issues in dispute, its position on those issues, and supporting authority for its position(s). By no later than 5:00 p.m. on Thursday, December 12, 2024, any party opposing the request for relief may file a letter, not to exceed three (3) pages, outlining that party's reasons for its opposition and supporting authority.
The movant (Plaintiff) filed a 3 page letter (the correct procedure under either the scheduling order the later oral order). The defendant, however, filed a 5-page answering brief -- allowed under the scheduling order but exceeding the limit set in the oral order.
Judge Williams thus declined to consider any of the argument after page 3 of the brief:
While the Operative Scheduling Order sets default page limits for motions to strike, the parties were both instructed to submit letter briefs not exceeding three pages. Cisco complied with that instruction. Ramot did not. Accordingly, the Court will exercise its discretion and give no weight to the text beyond page three of Ramot's brief.
The District of Delaware's 2025 Bench and Bar is set for September 25-26, 2025. Yesterday, as we predicted, the Court issued an order moving all filing and service deadlines for those days to the following Monday, and directing the Court not to set deadlines on those days:
WHEREAS, the Court having announced that it will host its biennial District of Delaware Bench and Bar Conference on September 25 and 26, 2025, and the Court wishing to promote the participation of as many members of the Bar as possible;
IT IS HEREBY ORDERED that all members of the court - District, Magistrate, and Bankruptcy Judges - will, to the greatest extent possible, cancel and refrain …
Defendants are always on the lookout for ways resolve patent cases (and other cases) early. One potential avenue is an FRCP 12(c) motion for judgment on the pleadings—but it only works in uncommon circumstance that the pleadings themselves show a lack of infringement or validity.
It's an uncommon circumstance—but not unheard of. Last week, the Court granted an FRCP 12(c) motion of no contributory infringement in Boehringer Ingelheim Pharma. Inc. v. Apotex Inc., C.A. No. 23-685-CFC (D. Del.), after a plaintiff's own complaint showed a lack of infringement.
Boehringer is an ANDA action. The patent claims a drug used to treat a disease in patients who—critically—are ineligible to receive a second drug. The label …
It's easy to forget. But really, really really, you should move to seal the courtroom when either side is discussing your client's confidential information.
As we've discussed before, the standard for sealing information is harsh. Under the Third Circuit's Avandia opinion, in order to show good cause for a protective order to seal, a party must show "with specificity" that “disclosure will work a clearly defined and serious injury to the party seeking closure.” In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 924 F.3d 662, 671 (3d Cir. 2019). That can be toughtodo.
But you know what is even tougher? Redacting information discussed in open court. Then …
Back in 2021 the Federal Circuit issued an opinion in Bot M8 LLC v. Sony Corp. of Am. that raised the standard for granting a motion to dismiss in a patent action. C.A. No. 2020-2218, 2021 U.S. App. LEXIS 20624 (Fed. Cir. July 13, 2021). The Federal Circuit held that "[a] plaintiff is not required to plead infringement on an element-by-element basis"—which was news to the patent practitioners who had filed (and won) motions on that basis.
We haven't written much about that decision in the time since, but it's still out there, and it's something to keep in mind as you weigh your options in response to a patent infringement complaint.
I'm a baker. I was born of flour and heat and fermented in this big jar we call life. My original starter, Yeasty Boy, has sired many children that live lives of plenty. His grandchild, breAD-Rock, sits upon my counter as I type, growing fat on apple peels.
AI-Generated, displayed with permission
One of the first lessons of baking is that some ingredients can be modified or omitted without any real worry. You trade rosemary for thyme in your focaccia and everything's honky dory. On the other hand, if you switch the strong bread flour to whole wheat, you have crossed a moral line from which there may be no return. Some ingredients are simply more important, and some substitutions …
We're back! Just in time to be snowed in—the Court is closed today due to inclement weather.
While we were out last week, Chief Judge Connolly issued an interesting opinion on post-trial motions in Natera, Inc. v. CareDX, Inc., C.A. No. 20-38-CJB (D. Del.).
That case went to trial in January 2024, with plaintiff Natera winning a $96 million verdict on the first of two patents, but receiving a verdict of no infringement of the second patent. The Court's opinion addresses their motion for JMOL of infringement on the second patent.
Did a Poorly Phrased Question Doom JMOL of Infringement?
The arguments turned on a single claim limitation. The Court found …
Judge Burke issued an interesting claim construction opinion on Thursday of last week, invalidating a claim where one of two ways to infringe was scientifically impossible.
One claim limitation was set forth in the alternative:
A communications apparatus for transmitting electric or electromagnetic signals over air
Satius Holding, Inc. v. Samsung Electronics Co., Ltd., C.A. No. 18-850-CJB (D. Del. Dec. 12, 2024).
The parties agreed the it is "scientifically possible" to transmit "electromagnetic signals" over air, but the defendant argued that it was impossible to transmit "electric" signals over the air:
Defendants assert that one of those two options—“transmitting electric . . . signals over air”—amounts …
I have no image for this. Here are some turtles that live just across the PA/DE border, in Chadds Ford, PA (presumably for the public schools).Andrew E. Russell, displayed with permission
There were a few interesting notes this week that didn't quite warrant their own posts, so here is a combined update. We should really be on X / Twitter / Bluesky / Trends or something—I'm not sure any of these updates really warrant more than 140 characters. But here you go:
As the Court pointed out last week, the new 2024 Federal Rules went into effect on December 1. It looks like the changes to the FRCP are not significant, but there are some interesting changes to the Rules of Evidence, including a brand new Rule 107. We've already discussed that rule, but in short, it renames "demonstratives" to "illustrative aids" and says that "[w]hen practicable, an illustrative aid used at trial must be entered into the record." The new rules have other changes as well, including nice clarifications to FRE 1006.
The Associate Press reported yesterday that the JUDGES Act, which would add two new D. Del. judges, is in peril and facing a veto threat. Please keep it in your thoughts...
Chancellor McCormick, chief judicial officer of the Delaware Court of Chancery, is active on LinkedIn. She recently shared helpful briefing tips, including about overuse of acronyms and that you should use non-breaking spaces.
Delaware recently announcednew CLE rules, complete with a handy explanatory document. Beware—it looks like, under the new rules, Delaware attorneys now will be fined immediately if your CLE credits aren't completed by December 31 of your compliance year and reported by January 10 of the following year. No more makeup plans! There is a transition period for this year where the dates are a bit different.
The Delaware FBA announced last week that Delaware Bench & Bar conference will be September 25-26, 2025. Mark your calendars, and remember that the Court sometimes issues an order bumping any filing or service deadlines that are set for those days.
Judge Albright of the Western District of Texas has confirmed that he is moving from Waco to Austin, pending 5th Circuit sign-off. Law360 also reports that he named his dog Mandamus, which is awesome.
The District of Delaware's website, like many other courts across the country, added a warning recently about fake notices of electronic filing ("NEFs") that have malicious links. Sadly I can't seem to find any more detail on this, such as what to look for. Be careful out there!
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.
