It's well known that, in evaluating a motion to dismiss, the Court is limited on what it can consider to, e.g. the four corners of the complaint, documents incorporated therein, and things the Court can take judicial notice of.
Rule 12 recognizes sets out that a Court can convert a motion to dismiss to an SJ motion if it wants to consider matters outside of the pleadings:
Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable …
It's funny—for all the massive amounts of time spent litigating willfulness in patent cases, and the big evidentiary impact it can have, we don't get opinions addressing whether the Court will actually enhance damages all that often.
Yesterday, Judge Andrews issued a post-trial opinion addressing enhancement of damages after a willfulness finding. He applied the well-known Read factors to determine whether to enhance damages, noting that they are still persuasive even though they are no longer required after the Supreme Court's more recent Haloopinion.
Here's how the factors panned out, including whether they weighed in favor of or against enhancement of damages
I'll be honest, I'm busy today so its gonna be a short one.
Let's get this over with -- first a picture:
I cannot imagine how this fit into the post it was intended forAI-Generated, displayed with permission
Second, and last, the following amusing and instructive footnote from Judge Andrews' opinion on post-trial briefing in the long running case of Acceleration Bar LLC v. Amazon Web Servs., Inc., C.A. No. 22-904-RGA (D. Del. Mar. 26, 2026):
Defendant's Opening Brief of twenty-five pages (D.I. 332) raises at least seventeen arguments (D.I. 360). When I noticed a general absence of any attempt to explain how Defendant had preserved most of these arguments, I directed Defendant to submit a …
Although it's included on every scheduling order I've ever seen, the import of the close of fact discovery is not always obvious. Can you bring discovery disputes after? Do you need to update discovery responses after? What even is a fact?
Judge Andrews had an order yesterday in Exelixis, Inc. v. Sun Pharm. Ind. Ltd., C.A. No. 24-1208-RGA, D.I. 188 (D. Del. Mar. 20, 2026), that sheds a bit of light on what you can't do near the close of fact discovery.
The defendant had filed a motion for international judicial assistance (Hagueling, I call it) last month, a couple weeks before the close of fact discovery. The Plaintiff opposed on the …
I like to think we are getting in to spring. That new life is on the verge of breaking free of the currently cold and fetid ground. That Persephone is not held up on some unusually difficult underworld errand. That we may again be renewed.
My furnace died during the last snowstorm, which has made me weirdly more poetic and prone to flights of dramaAI-Generated, displayed with permission
In that spirit of renewal, I bring you the opinion in Ferrer Int'l S.A. v. Verge Analytics Inc., C.A. No. 24-694-RGA (D. Del. Feb. 24, 2026). That case dealt with a surprisingly novel set of facts.
The plaintiff filed a complaint and the defendant filed counterclaims, which the plaintiff answered. Then, there was an amended complaint, followed by amended counterclaims that were identical to the original counterclaims. The answer to those counterclaims, however, was different from the previous answer, with some allegations that were previously admitted now denied.
The defendant moved to strike these changed responses to the counterclaims, "premised on the theory that Plaintiff could not substantively change its responses to the unchanged allegations of the counterclaims."
In the spirit of the season, Judge Andrews denied the motion, finding that the plaintiff was free to start anew, unfettered by its old responses:
In this case, Plaintiff was required to respond to Defendant’s amended pleading. Plaintiff was not limited to copying its previous response to the counterclaims. It could treat them as new counterclaims.
Id. at 2.
And so let us all bask in the coming light of a new and stronger sun. Free to reconsider old bargains and break new ground.
In Pierce v. Delaware River and Bay Authority, C.A. No. 24-679-RGA (D. Del.), an employment case, the defendant filed a pretty typical 20-page motion for summary judgment that sought summary judgment on all of plaintiff's claims.
In response, the plaintiff filed a motion for 10 additional pages for its answering summary judgment brief, in order to address all of his claims, including "retaliation under the First Amendment, and Defamation under 42 U.S.C. § 1983 and state law." Id., D.I. 54 at 2. The defendants opposed.
Or, at least, they did in theory. The Court granted the motion before the defendants filed their responsive brief, and the plaintiff received 50% more pages than …
It's a simple fact, and it's the work of a blogger to cozy it up in a middling metaphor and accompanying stock photo.
[Eds. Note - I've been bugging Andrew to add functionality for Gifs, which I think will really elevate the blog. Consider this my formal request for the Court to implement the same feature on Pacer].
But one can trust Judge Andrews to put it in plain, quotable, terms.
[Eds. Note -- please let me know if you've ever quoted the blog …
"You should grant our stay because it will increase the chances of institution which will increase the chances of you granting our stay"Ihcoyc
This week in MYW Semitech, LLC v. Apple Inc., C.A. No. 25-504-RGA-EGT (D. Del.), the Court rejected a pre-institution IPR stay argument that I haven't seen before.
The accused infringer pointed out that the PTAB now considers whether any pending District Court action is stayed. It argued that, because institution would simplify the case (one of the traditional stay factors), the Court should stay pre-institution to maximize the chances of institution and, thus, simplification:
Under the new bifurcated process, granting a stay increases the likelihood of simplification of the issues. The factors considered by the Director as part of the discretionary denial process include “whether the court granted a stay” in this case. . . . This “evolving circumstance[]” means that granting a stay at this point directly increases the likelihood that [the accused infringer]’s IPRs will be considered on the merits and instituted—which in turns increases the likelihood that these IPRs will simplify the issues for the Court. . . . Thus, a stay promotes the simplification of the issues by encouraging the Director to allow consideration of the IPR on the merits for purposes of institution. The new discretionary denial procedure thus presents a new reality that uniquely warrants a stay while IPRs are at the discretionary considerations stage.
D.I. 65 at 2-3. Judge Andrews denied the pre-institution stay in a three-sentence oral order, and dedicated one of those three sentences to specifically rejecting this new argument:
ORAL ORDER: The motion for a stay pending IPR (D.I. 59) is DENIED without prejudice to renewal should an IPR actually be instituted. There is no reason to interrupt the schedule based on speculation about what might happen in April or June 2026. (D.I. 60 at 2). I note that I do not think that I should grant a stay in order to increase [the defendant]'s chances of getting an IPR instituted.
MYW Semitech, LLC v. Apple Inc., C.A. No. 25-504-RGA-EGT, D.I. 68 (D. Del. Jan. 21, 2026). Good to know!
Missing a notice of appeal deadline is a nightmare scenario for an attorney. It's easy to imagine how it could happen: Final judgments can come at somewhat random times, and it's not a deadline that PACER flags for counsel. And, depending on how things go, it may be difficult or impossible to get the deadline extended. If that happens, that's it: your case may be over.
It looks like this nightmare almost played out in a recent District of Delaware case.
In Belden Canada ULC v. CommScope, Inc., C.A. No. 22-782-RGA (D. Del.), the Court entered a final judgment on October 14, 2025. The notice of appeal was due Thursday, November 13, 2025 …
The blog was on hiatus for a few weeks back in early September while I was out for a brief baby break, a period which included an important opinion from Judge Andrews. He granted a motion to dismiss a DTSA claim that relied on inevitable disclosure, holding that inevitable disclosure is not a cognizable harm under the DTSA:
I find that, to the extent FICO relies on the inevitable disclosure doctrine to plead threatened misappropriation, FICO has failed to state a claim under the DTSA. Dr. Bastert is bound by multiple agreements that bar him from disclosing FICO's trade secrets to his new employer. (D.I. 1 131). That Dr. Bastert only provided FICO with a …
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