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 …
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.
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?
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 ANDA12 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 …
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.
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 …
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 …
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 …
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.
