It has been pointed out that many of my references are so oblique as to be indecipherable. Rather than improve the practice, I have resolved to simply include a footnote at the bottom of each post, lest they go unappreciated.
The best and worst artists please themselves first.
AI-Generated, displayed with permission
Anyway, today's case is Cosmokey Solutions GmbH v. Duo Security, Inc., C.A. No. 18-1477-JLH-CJB (D. Del. May 19, 2025).
The defendant there brought a Daubert motion to preclude the plaintiffs' experts testimony on the grounds that he offered a "legally wrong construction" of one of the claim terms. Naturally, this motion was brought long after the Court issued its Markman order. Neither party had proposed …
When it comes to summary judgment and Daubert motions, the local rules here in D. Del. set a limit for the number of pages, but don't set a limit for the number of motions. Our judges' form scheduling orders for patent actions address this, and set length limits for brifing dispositive motions (and sometimes for combined SJ/Daubert briefing).
Sometimes, however, parties end up with scheduling orders that place no limits on the number of motions. In that case, in theory, a party can file as many SJ motions as it wants under the rules, with 20 pages for each motion. In practice, that may not pan out so well.
I don't think I'm speaking out of turn when I say that snap removal is a patently ridiculous concept. Whatever lawyer first decided to float this argument deserves all of the praise I can heap upon them, both for the inventiveness and sheer audacity. In fact, lets take a moment to snap for them now:
Some say he's still writing that brief. . .AI-Generated, displayed with permission
In any case, snap removal has been the law in the Third Circuit since Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 152-53 (3d Cir. 2018), where the Court held that the plain language of the removal statute required snap removal even though the "result may be peculiar." Id. at 153-54.
But real snappies will be aware of the next big thing—"super snap" removals, which the Third Circuit has yet to address. A super (duper) snap removal (expialadocious) is where the plaintiff electronically submits the complaint, the defendant becomes aware of it through their docket-monitoring service of choice, and then removes the case before the filing has even been accepted by the clerk.
Snappy.
The Ninth Circuit—the first to address this growing class of removals—held that they "had a foundational defect—the absence of an existing civil action in state court—that rendered them not just defective but legally null and void." Casola v. Dexcom, Inc., 98 F.4th 947, 963 (9th Cir. 2024).
Judge Noreika had a decision yesterday on a middle-ground between regular and snap removal, which I have chosen to call semi-super snap removal (expialadocious). The plaintiff in Higgins v. Novartis Pharms. Corp, C.A. No. 25-245-MN (D. Del. May 14, 2025) filed ...
This is not the level of disclosure at issue here.AI-Generated, displayed with permission
Most readers who are patent litigators will know this already, but a "claim chart" is a table with two columns. The column on the left lists claim elements, and and the column on the right lists the portions of something—typically a product, system, or disclosure—that meets the elements on the right.
The chart shows the reader how the thing (whatever it may be) meets the elements of a claim or claims.
Detailed claim charts sometimes include figures with arrows pointing to the relevant claim elements, quotes of relevant text (if applicable), and/or a narrative description of how the cited material meets the element.
We had some indications last fall that referrals to visiting judges may be slowing—but six months on, it's clear that they are still ongoing. This week, we saw 11 cases reassigned to visiting Judge Campbell Barker of the Eastern District of Texas. That prompted me to take a look at recent referrals in patent cases, and here is what I saw for this year:
May 6, 2025: 11 reassignments to visiting Judge Campbell Barker, E.D. Tx.
April 8, 2025: 11 reassignments to visiting Judge Choe-Groves, United States Court of International Trade
March 11, 2025: 9 reassignments to visiting Judge John F. Murphy, E.D. Pa.
February 12, 2025: 7 reassignments to visiting Judge Joshua D. Wolson, E.D. …
As we've covered exhaustively, Delaware favors the use of contention interrogatories. As discovery requests go, these are often some of the more burdensome ones to deal with, and so the responding party will frequently respond with all manner of possible objections.
One response that I see from time to time is that a contention topic seeks information that is really the subject of an expert report, and thus that no response is necessary until the reports are due.
This is where expert reports come fromAI-Generated, displayed with permission
This was exactly the approach that the defendant took last week in Astellas Pharma Inc. et al v. Sandoz Inc., C.A. No. 20-1589-JFB-EGT, D.I. 779 (D. Del. May 6, …
It's always a good idea to keep up to speed on the judges' form scheduling orders. In their form orders, the judges set forth their preferences, and when those orders are entered in a case, they can override some of the local rules.
In the past, when the judges have updated their form scheduling orders, they have occasionally ordered that the updates to apply to pending cases. Sometimes, even absent such an order, counsel have been eager to apply the new procedures on their own.
(The last such change I recall was when judges started switching over to Judge Andrews' method of claim construction briefing, where the parties serve back-and-forth …
We haven't written about pre-institution IPR stays in some time. Defendants generally know that they are tough to achieve. You can try it but, unless there is something special about your case, pre-institution stays are rare. Most of our judges view the chances of institution as too remote to support a stay, and want to evaluate the situation after institution.
Judge Andrews issued a short oral order last week consistent with that view, denying a pre-institution in a way that suggests, unsurprisingly, that getting a pre-instutition stay remains difficult:
I read the briefs in connection with the motion to stay. Each side's positions are clear. Oral argument would not change the outcome. Therefore, the oral argument …
I've been a Delaware lawyer for a while now, but today is the first time I've seen a case where a party submitted video evidence of a deponent acting suspicious.
Pictured: The deponent, probablySergiu Nista, Unsplash
I gather from the briefing that the case was already quite contentious, as the plaintiff in Inpria Corporation v. Lam Research Corporation, C.A. No. 22-1359-CJB, D.I 506 (D. Del. Apr. 28, 2025) had requested a deposition "focused solely on document creation, retention and storage." Id. at D.I. 293. According to the briefing, the deponent "referenced another screen, positioned to his left, after questions were asked but before providing an answer," but when asked about what was on the screen, he testified …
Never-before-seen photo of Mark Twain issuing his famous quote about statistics.Emily DiBenedetto, displayed with permission
The Administrative Office of the U.S. Courts prepares various statistical reports on behalf of the Federal Judiciary, including the Federal Court Management Statistics, which are released quarterly. The most recently released batch of data comes from December 31, 2024. You might see these data cited occasionally in motions to transfer, as I happened to notice in a District of Utah opinion denying a motion to transfer to the District of Delaware.
The first trend is that—surprise!—our judges are very busy.
There have been an average of nearly 2,400 pending cases at any given time over the last six years, and total District of …
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