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 ...
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.
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 …
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 …
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 authorAI-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 …
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'") …
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).
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.
Yes, this is yet another Pennypack post. I can't resist. It's a tough-to-apply standard that impacts many cases (patent and otherwise). And it can sometimes seem to reward bad behavior by litigants, even—maybe especially—when applied as written.
But not this time! In Prolitec Inc. v. ScentAir Technology, LLC, C.A. No. 20-984-WCB (D. Del. Oct. 2, 2024), the patentee produced documents about a pre-priority-date sale of prior art after fact discovery closed and just five days before opening reports.
Unsurprisingly, the other side's opening expert report five days later did not include invalidity allegations about this sale.
It seems fairly well known that while parties can freely stipulate to most kinds of schedule adjustments in the District of Delaware, changing the dispositive motion deadline is a danger zone that might result in the denial of your stipulation—or worse, such as the loss of your trial date.
But people often do it anyway. Yesterday, visiting Judge Bryson denied a stipulation that would move the case dispositive motions deadline to April 25, 2025 for a trial starting July 14, 2025.
Assuming the parties use the briefing schedule under the local rules, the Court will not have a full set of papers until May 16, less than 2 months before the first day of trial. No …
Judge Bryson unsealed a discovery dispute opinion last week in Impossible Foods Inc. v. Motif Foodworks, Inc., C.A. No. 22-311-WCB (D. Del.), addressing a motion to supplement infringement contentions after the deadline for final contentions. The patentee argued that it had good cause to supplement because it did so quickly after the accused infringer added a totally new prior art reference in their final invalidity contentions.
There are a couple of interesting things about the opinion, but I wanted to call out one in particular.
The case included a deadlines for final contentions, and then for case narrowing, with the defendant to drop to a list of 10 references. The defendant initially cut …
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