A Blog About Intellectual Property Litigation and the District of Delaware


WCB
The Honorable William C. Bryson

After Seventh Stipulated Extension, Court Asks What's Up

Andrew E. Russell, Dec. 15, 2025
Extension Stipulation

People think they just have to run out that clock...
Akram Huseyn, Unsplash

It's not uncommon for parties to find themselves in a position where, while discussing settlement, they end up filing a series of short (or not so short) extensions over a potentially lengthy period in order to give themselves time to negotiate.

Why not just stipulate to a full-on stay? The problem with a complete stay is that it removes all pressure to actually get the settlement done. I've seen cases where one side wanted to push the settlement forward, but would have had to essentially move to lift a stay to apply any kind of pressure. That's not where you want to be.

Sometimes, implementing the process as a series of stipulated extensions of a deadline, such as an answer deadline, can help maintain some pressure for each side to continue to negotiate while not actually requiring the parties to litigate. There is always the implicit threat that, if the parties can't agree on a further extension, the case will start right back up again.

As we've noted before, though, eventually the Court may want an update. The exact number of repeated extensions that a particular judge will tolerate likely depends on the circumstances, but it's not infinite.

We got another data point on this last week after the parties in a patent action before Judge Bryson filed 7 stipulations to stay an answer deadline. The Court granted the newest stip, but asked in the accompanying oral order for a status update within 4 days:

ORDER: This stipulation to extend time (D.I. 249 ) is granted. However, this is the seventh stipulation to extend time for defendants to file their answers and counterclaims with nearly identical language. Accordingly, parties are directed to file a joint status report with the court no later than December 12, 2025, at 5 p.m. Eastern Time setting forth what progress has been made toward settlement of this matter, what remains to be done, and when the parties expect this matter to be resolved. Signed by Judge William C. Bryson on 12/08/2025. (mpb) (Entered: 12/08/2025)

Colt International Clothing, Inc. v. Quasar Science LLC, C.A. No. 22-213-WCB, D.I. 250 (D. Del.).

On the fourth day, the parties filed a notice of settlement and promised to dismiss the case.

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Does O2 Micro Raise the Bar for Waiver of Claim Construction Issues?

Andrew E. Russell, Nov. 2, 2025
Claim Construction Waiver Forfeiture

Wave
Jeremy Bishop, Unsplash

Last week, Judge Bryson ruled on a motion in limine where an accused infringer sought to strike the patentee's alleged "new theory" of validity just before trial or, in the alternative, for a permission to raise a new claim construction regarding that theory.

The Court ultimately denied the motion in limine because the accused infringer was on notice of the theory, but granted its alternative motion for permission to raise a new claim construction position regarding the theory, citing O2 Micro.

The Accused Infringer Was On Notice of the Issue

The Court easily denied the motion to strike, finding seven different ways that the accused infringer either was or should have been aware of the …

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Court Permits Complaint That Relies on Accused Infringer's Own Patent to Allege Infringement

Andrew E. Russell, Sept. 17, 2025
Motion to Dismiss

Figure 2A -- the figure at issue.
Figure 2A -- the figure at issue. U.S. Patent No. 11,012,647

This is an issue I don't recall having seen before. In VTT Technical Research Centre of Finland Ltd. v. Teledyne Flir, LLC, C.A. No. 25-348 (D. Del.), the plaintiff filed a pretty typical-looking patent complaint, where it alleged infringement of its patent by the defendant's products.

The complaint, however, relied on an allegation that the product was marked as practicing a particular patent, and that figure 2A of that patent showed a circuit that infringed on the plaintiff's patent:

According to VTT, the figure (“Figure 2A”) [of the defendant's own patent] depicts the allegedly infringing functionality. . . . In the complaint, VTT alleges on information …
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I Can Go to Trial Again!

Nathan R. Hoeschen, June 3, 2025
Stipulation

Entering into a stipulation is easy. You say we both agree to move this date or not assert that patent, and normally the court signs it and everyone goes about their business.

Getting out of a stipulation is harder.

AI-Generated, displayed with permission

If you're wondering just how hard, I present to you Judge Bataillon's opinion this week in Astellas Pharma Inc. v. Zydus, Inc., C.A. No. 20-1589-WCB (D. Del. May 30, 2025).

In that case Judge Bataillon resolved the rare "motion for relief from stipulation." The parties had long ago entered into a case narrowing stipulation in which the defendants dropped their obviousness and anticipation defenses.

Following a trial, then an appeal and a remand, the case was back in Judge Bataillon's hands, and was a bit more complicated. In the interim, it had been consolidated with related cases against other defendants and new claims from a related patent.

Because those other claims and other defendants were not bound by the prior stipulation, Lupin and Zydus argued that ...

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Court Orders Party to Make Unavailable Expert Witness Available for Deposition on a Better Date, or Face Potential Preclusion

Andrew E. Russell, June 2, 2025
Expert Witness Expert Discovery

Turn Around
Jim Wilson, Unsplash

This is something you don't see often. In Kaneka Corporation v. Designs For Health, Inc., C.A. No. 21-209-WCB (D. Del.), the plaintiff contacted the Court after defendant's counsel offered only a single potential date for the deposition of the defendant's expert, and that date was just five days (and three business days) after the expert's non-infringement report.

The case has been going since 2022, with many twists and turns and amended scheduling orders. One of the most recent scheduling orders set deadlines of May 16 for opening expert reports and May 30 for responsive reports, with the close of expert discovery to close on June 13.

The defendant offered an opening report from …

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Judge Bryson Addresses Whether Parties Must Seek a Protective Order to Narrow 30(b)(6) Topics

Andrew E. Russell, May 19, 2025
30(b)(6)

This is basically what I imagine when I hear about a
This is basically what I imagine when I hear about a "corporate deponent" Chris Barbalis, Unsplash

On Friday, the Court unsealed an interesting Judge Bryson opinion on 30(b)(6) depositions.

As we've noted, Rule 30(b)(6) now parties to meet-and-confer prior to the deposition to resolve the scope of the testimony. But the rules leaves out the exact parameters of how and when parties object, and what happens when they do.

Judge Bryson's opinion addresses an instance where a responding party objected to a 30(b)(6) notice, designated witnesses on only portions of the noticed topics, and offered to meet-and-confer (an offer the noticing party never accepted).

As promised, the deponent was prepared to testify on only a portion of the …

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Federal Circuit Affirms D. Del. Jury's Invalidation of Two Patents—And Restricts Scope of IPR Estoppel

Andrew E. Russell, May 12, 2025
IPR Estoppel

No Stopping
Ben Tofan, Unsplash

As most of our readers likely know, IPR estoppel means that an accused infringer who brought an IPR cannot claim invalidity at trial on a grounds it reasonably could have raised during the IPR. But what constitutes a "grounds" for invalidity has varied across different District Court judges.

Everyone agrees that, as the statute says, the PTAB cannot address system or product prior art under the on-sale bar, but can potentially address publications describing those products. There has long been a split of precedent on whether an accused infringer covered by IPR estoppel can argue invalidity based on a prior art product, where the documentation describing the production could have been asserted in the IPR …

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A Bit of an Oops

Nathan R. Hoeschen, May 1, 2025
Oops wrong dec

As the wise man said, pobody's nerfect. Although it may be hard to fathom, even I dear, reader have made a typo once or twice. I recall clearly the last time, it was autumn of 2003 . . .

(Eds. Note -- he goes on like this for a while, so I cut it out. his actual last typo was in this blog on Tuesday.)

Pictured: the author
Pictured: the author AI-Generated, displayed with permission

Even in the law this is usually no big deal -- you realize you submitted the wrong exhibit Q, or you forgot the signature line, or whatever, and as long as you catch it early it tends to be fixable with a call to opposing counsel and the …

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Don't Act Like You Wouldn't Do It

Nathan R. Hoeschen, April 1, 2025
Pizza Motions In Limine

I will speak a truth that many of you have suspected. Sometimes we (well, I) pick a case just because it has a fun name. My original post today was about HQ Specialty Pharma Corp. v. Fresenius Kabi USA, LLC, C.A. No. 21-1714-MN. Honestly the case was too fact intensive to easily convert to a general interest blog post. On the other hand, it contained a great deal of discussion of the testimony of a New Jersey Pharmaceutical executive named Mr. Pizza.

"I'm cooked!" AI-Generated, displayed with permission

The whole thing ended up being just jokes and out of context slices ("Mr. Kelly . . . doubted whether Mr. Pizza 'had any knowledge of the [prior art] references'") …

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Time Enough For Fees

Nathan R. Hoeschen, Oct. 10, 2024
Extension Stipulation

Deadline extensions are perhaps the most common of all requests to the Court. I have seen requests granted for medical reasons, conflicts with deadlines in other cases, prescheduled vacations, and the need to enact a dark ritual which can only take place when the moon fears to rise (we'll have a post about that one on the future, assuming the ritual is unsuccessful and does not result in all things returning to dust beneath the sacred ash and the profane oak).

Paul Robert, Unsplash

Today's post, however, is a tale of an extension denied. The defendant in Purdue Pharma LP v. Accord Healthcare Inc., C.A. No. 22-913-WCB, D.I. 111 (D. Del. Oct. 2, 2024) had prevailed on its obviousness defense following a bench trial and filed a timely motion for fees 14 days after the Court entered final judgment.

The plaintiff, however, apparently intended to appeal the invalidity determination and thus requested that the defendant stipulated to defer briefing on fees until after the resolution of that appeal. When the defendant refused to stipulation, plaintiff moved to defer briefing until after the appeal and requesting expedited consideration of the motion (as the clock was already ticking on its 2-weeks to file a responsive fees brief).

Unlike in the true to life examples listed at the start of the blog, the plaintiffs motion was not based in any particular conflict with client or counsel. Instead, the deferment was based on the general proposition that "the appeal may impact or otherwise refute the bases for Accord’s motion." Id., D.I. 108 at 2. The defendant filed a short opposition to the motion, noting that this logic would apply to essentially any motion for fees.

Judge Bryson denied the motion to defer the briefing in a short order:

The motion to defer briefing on Accord's motion for attorneys fees 108 is denied. The court will determine when to rule on Accord's motion for attorneys fees after the briefing is complete.

We'll keep a watch out for that fees opinion and let you know if it comes before or after the appeal.

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