It can take quite a while to resolve summary judgment motions. In essentially every patent case they take up hundreds of pages of briefing accompanied by hundreds more pages of declarations, reports, and exhibits on the most arcane technical matters.
For this reason, all of our Article III judges' form scheduling orders (except Judge Andrews) explicitly instruct the parties to leave 3 or 4 months (3 for Judge Connolly, 4 for the remainder) between the close of briefing and the pretrial conference.
Because a modern patent trial tends to involve a great deal of back and forth on exhibit lists, designations, statements of facts, etc., the pretrial order is usually prepared -- or …
As our AI overloads approach a dark singularity, I occasionally amuse myself by asking it increasingly obtuse questions just to see what it spits out. Today, for instance, I asked it for a cartoon depicting the abstract legal concept of collateral estoppel:
AI-Generated, displayed with permission
I'm not entirely sure the old fella hit the mark on this one, but I'm honestly not sure what I would come with that's any better. Another draw on the Turing test.
Anyway...
Judge Hall issued an interesting opinion on last week on collateral estoppel. The plaintiff in Ingenus Pharms., LLC v. Hetero USA, Inc., C.A. No. 24-1025-JLH (D. Del. Oct. 21, 2025), had several suits pending in different districts regarding …
A very blurry picture of a claim from one of the asserted patents, highlighting roughly the text that the patentee seemed to seek summary judgment on.RE47,031
It's common for parties to not dispute the presence of some portions of a patent claim in an accused product. For example, in a patent for a "computing device" with software meeting certain limitations, the defendant may not dispute that the presence of a "computing device"—but might vigorously dispute that the software it runs meets the remaining claim limitations.
In most patent cases, the presence of at least some portion of the claim limitations in the accused product is not disputed—and often, quite a few limitations are not disputed. But the parties regularly …
Photograph showing the proper procedural mechanism to undo subject matter jurisdiction in this instance.Delorean Rental, Unsplash
In CogniPower LLC v. Fantasia Trading LLC, d/b/a AnderDirect, C.A. No. 19-2293-JLH-SRF (D. Del.), a patent suit, the Court granted a third-party supplier's motion to intervene back in 2020. Since then, based on the docket, the patentee has been trying to dismiss the intervenor from the case.
Today, the Court issued its order denying a motion to dismiss by the patentee, and it addresses to interesting issues regarding an effort to limit the scope of the Court's judgment based on subject matter jurisdiction.
First, the patentee tried to dismiss the claims based on an argument that, five years after …
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 …
I'm not going to blow the blog's budget on downloading all of the evidence in the 35 exhibits attached to the Rule 11 motion. But it looked like a lot.Christa Dodoo, Unsplash
Federal Rule of Civil Procedure 11, as most readers likely know, says an attorney making a filing certifies that the filing has factual support:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . . .
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery . . . .
If the opposing party has reason to doubt that an attorney has met their burden, it can threaten a Rule 11 motion. The procedure gives parties an opportunity to cure, though, and parties sometimes do.
Those motions are often threatened but, in practice, we don't see a ton of rulings on Rule 11 motions in the District of Delaware. So it was interesting to see the Court's ruling today in Central Santa Lucia, L.C. v. Expedia Group, Inc., C.A. No. 22-367-JLH (D. Del. Mar. 10, 2025).
That case involves a violation of a federal statute regarding the sale of certain property. To bring a case, the plaintiff must have acquired ownership of the property before a specific date: March 12, 1996.
The plaintiff in the case claimed it owned the relevant property as of the date. The defendant disagreed, and filed a Rule 11 motion seeking sanctions for filing a pleading that relied on fraudulently ...
Looks like someone got a hole in one. On Friday, Judge Hall issued a relatively short memorandum order granting a § 101 summary judgment motion, and it neatly encapsulates what § 101 analyses seem to be trending towards.
The Court found that the 10 asserted claims, across three patents, are all directed to a simple abstract idea:
I agree with Netflix that each and every one of the asserted claims is directed to “the abstract idea of collecting, organizing, and automatically displaying content (e.g., a playlist of Internet content).” . . . The asserted claims contain a lot of words, and some of those words sound complicated.[] But what the claims cover is not complicated. …
Claim construction in this case was originally set for 2020—before the parties stipulated to cancel it.Kelly Sikkema, Unsplash
Yesterday, Judge Hall granted a post-trial JMOL motion in Taiho Pharmaceutical Co., Ltd. v. MSN Laboratories Private Ltd., C.A. No. 19-2342-JLH (D. Del.), finding no infringement as a matter of law.
The motion resolved a relatively straightforward claim construction issue: what the word "purity" means in the claims.
The patentee said it meant chemical purity, while the accused infringer argued it meant "polymorphic" purity. The patent as a whole is directed towards crystal forms of a drug, and discussed purity of the crystal form—"polymorphic" purity—but also mentions chemical purity. The patenteee agreed that, if "purity" means polymorphic …
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.
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.
