A Blog About Intellectual Property Litigation and the District of Delaware


RGA
The Honorable Richard G. Andrews

Some Quick Data Points on Sufficient Facts to Allege Willfulness in a Complaint

Andrew E. Russell, Oct. 3, 2025
Willfulness MTD

I have no idea what image would go with this, so here is a mildly interested chipmunk.
I have no idea what image would go with this, so here is a mildly interested chipmunk. Andrew E. Russell, displayed with permission

Yesterday, Judge Andrews granted two motions to dismiss willfulness allegations for a failure to allege knowledge. The orders are short and sweet, and provide some examples of the kinds of allegations that are not sufficient to allege knowledge of the asserted patent in support of a willfulness claim.

First, in New Directions Technology Consulting, LLC v. Abbott Laboratories Inc., C.A. No. 25-506-RGA (D. Del.), the Court granted the willfulness portion of a motion to dismiss in just three sentences:

The motion to dismiss the willfulness allegations is GRANTED. Alleging that employees of Defendants attended a 2016 presentation on the topic of "Benefits of IP Partnering for Drug Delivery Telemanagement" provides no factual basis for an allegation of willfulness. Nor does the allegation that in 2021 an online article "Patents are Important for Smart Healthcare Products"-- described the patents and that Defendants subscribe to the online publication.

New Directions Technology Consulting, LLC v. Abbott Laboratories Inc., C.A. No. 25-506-RGA, D.I. 18 (D. Del. Oct. 2, 2025).

This decision was quick, issuing less than two motions after the motion to dismiss, although it only addressed the motion in part. The Court referred the motion's remaining allegation re: § 101 to Magistrate Judge Tennyson.

The Court also issued an uncommonly ...

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Throwback . . . Thuesday . . .

Nathan R. Hoeschen, Sept. 23, 2025
Interference

As a man of letters, I am often astounded by the power of certain small and simple expressions to remain in the general consciousness for decades.

Why does taco Tuesday still ring so true? Any number of callow admen must have attempted to start Fish Friday (a natural choice for many reasons), macaroni Monday, or Waldorf Salad Wednesday, yet all of these efforts are long forgotten.

Will any of us recognize the next great cultural alliteration when it arrives, or will it be known only in history's telling?

saracohenn, Unsplash

All of this is only in reference to the title, so if you've read it so far please see me for a coupon redeemable for a discount at any …

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A Hypothetical

Nathan R. Hoeschen, Aug. 21, 2025
Damages ANDA

Judge Andrews had an interesting decision yesterday on the hypothetical negotiation date in an ANDA case.

Sebastian Herrmann, Unsplash

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 ANDA 12 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 …

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Adversity Breeds Strength (Sometimes)

Nathan R. Hoeschen, July 24, 2025
Adverse Inference ANDA

I know that I promised a hard-hitting post on infringement stats in ANDA cases, and I was really going to post the update this time—really! But then the very first case I read had a neat issue that deserved a post on its own. We can only hope I remember to get to it next week.

My blog calendar
My blog calendar Claudio Schwartz, Unsplash

In the meantime, today I have the rare case where the Court actually granted an adverse inference as a discovery sanction.

Central to infringement in Novartis Pharms. Corp v. MSN Pharms Inc., C.A. No. 22-1395-RGA, D.I. 523 (D. Del. July 11, 2025), was a factual issue that is only of interest to analytical chemistry …

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Judge Andrews: Chances of IPR Institution Too Speculative to Support a Pre-Institution Stay

Andrew E. Russell, May 5, 2025
Pre-Institution Stay IPR

Roll the Dice
Leon-Pascal Janjic, Unsplash

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 …
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282, Where Are You, I Got No Way To Find You

Nathan R. Hoeschen, April 24, 2025
282

A 282 notice is a bit of an anachronism and a bit of a trap.

AI-Generated, displayed with permission

For those who don't read these latter sections of section 35 that often, it goes like this:

a party asserting invalidity or noninfringement shall give notice in the pleadings or otherwise in writing to the adverse party at least thirty days before the trial, of the country, number, date, and name of the patentee of any patent, the title, date, and page numbers of any publication to be relied upon as anticipation of the patent in suit [or] as showing the state of the art

Obviously, in the modern world of contentions, expert reports, moving type, etc., the parties are usually …

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Another Day, Another Damages Daubert

Andrew E. Russell, April 11, 2025
Damages Daubert

"In my expert opinion, the patents are really valuable. The plaintiff told me so!" AI-Generated, displayed with permission

Exclusion of damages opinions are a frequent topic for our blog. Daubert motions to exclude expert opinions tend to have a higher success rate than other types of Daubert motions, and it's worthwhile to have a good understanding of where the pitfalls lie, whether you are helping an expert draft a damages opinion or considering challenging one.

Yesterday, the Court granted a Daubert motion to exclude a damages opinion in a patent case. The expert relied on prior licenses to other patents from the same inventor to support his reasonable royalty opinion for the patents-in-suit. That requires showing that the prior …

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A Different Sort of Redaction Story

Nathan R. Hoeschen, March 27, 2025
Redactions

Jeff Castellano

The blog has many stories about the perils of over-redaction. Time and again the Court has chastised the parties for attempting to redact quotidian bits of agreements and correspondence, noting that the Court is not a "Star chamber."

Today's case, Inkit, Inc. v. Airslate, Inc., C.A. No. 23-793-RGA (D. Del. Mar. 26, 2025), shows that it's also possible to redact too little. The parties thereby had a long-running dispute about trademark infringement which ultimately evolved into a dispute about whether the defendant had violated a settlement agreement which resolved an earlier case between the parties.

That settlement agreement—like literally every other one I've ever seen—contained a confidentiality provision. The issue that arose is that, in …

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It's The Fi-Nal Judgment (da da da daaa daaa)

Nathan R. Hoeschen, March 20, 2025
Final Judgment

Some among you will appreciate this joke. Others, baffled.
Some among you will appreciate this joke. Others, baffled. AI-Generated, displayed with permission

Judge Andrews had a fun opinion yesterday on an issue that does not come up very much at all.

The plaintiff in Pioneer Hi-Bred Int'l Inc. v. Syngenta Seeds, LLC, C.A. No. 22-1280-RGA (D. Del. Mar. 19, 2025) dropped their infringement claims after claim construction. Rather than dismissing the case, they moved for partial summary judgment and asked Judge Andrews to enter final judgment so that they could appeal the otherwise dispositive Markman order.

The defendant, however, wanted to proceed to an invalidity trial, and thus opposed the entry of a final judgment. Judge Andrews declined to enter final judgment, noting that allowing appeal …

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Court Denies Summary Judgment Motion That Failed to Include Adequate Argument (and Violated the Page Limit)

Andrew E. Russell, March 17, 2025
Page Limits Summary Judgment

Green Frog
Andrew E. Russell, displayed with permission

Earlier this month we talked about the required structure for briefs in the District of Delaware. As to the required "argument" section, I said "We all know what this is." Maybe I was wrong.

An "Argument" Section That Wasn't

On Friday, the Court denied a motion for summary judgment for violating the local rule on briefing structure, because it's "argument" section failed to conform to the local rule on briefing structure, LR 7.1.3(c)(1)(f), and had exceeded the page limits for briefing. Roger P. Jackson, M.D. v. NuVasive, Inc., C.A. No. 21-53-RGA, D.I. 443 (D. Del. Mar. 14, 2025).

Basically, the patentee moved for summary judgment of infringement. But, rather than laying …

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