A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: March 2025

Court Faults Party for "Obviously Insufficient" Response to Contention Interrogatory, Offers Guidance on Resolving Discovery Disputes

Andrew E. Russell, March 7, 2025

I'm not sure that this is technically
I'm not sure that this is technically "bait"—much like an order from the Court is not "bait." But we'll run with it. Trophy Technology, Unsplash

I've heard certain kinds of orders from the Court be referred to as "blog bait"—things that you just know we are going to post about. A couple of topics fall into that category: Pennypack decisions, significant decisions on redactions, interesting § 101 opinions, and so on.

The common thread is that these are all things that come up a lot. They happen early in the case, before cases tend to settle or otherwise resolve. And they can have significant implications for the parties and the attorneys involved. You don't want to be the attorney …

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Promises, Promises

Nathan R. Hoeschen, March 6, 2025
Stipulation Pennypack

I am from Minnesota. Home of the noble loon, and dainty ladyslipper. It is a harsh place. I have read in books of lands where a person's word is all they have -- a sacred thing that must be protected at all costs. To barter it away is to invite the most dire peril.

I wasn't really using it much anyway...
I wasn't really using it much anyway... AI-Generated, displayed with permission

Minnesota is not such a place. The winds are fickle there, and everyone understands that most commitments are contingent upon a (sometimes unlikely) confluence of fortuitous occurrences. If you way, I'll visit Gramma this weekend, there's an implied "if it's not too cold." If you say "I'll bring the cheeseburger soup" it's understood that you …

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Tips on the Required Structure of a Brief in the District of Delaware

Andrew E. Russell, March 5, 2025
KB Legal Writing

Stay on the Path
Mark Duffel, Unsplash

This is something I've been thinking we should cover for long time. Here in the District of Delaware, the local rules set forth a required structure for every brief—but out-of-town counsel often seem to miss that.

Basically, Local Rule 7.1.3(a)(c) requires that an opening or answering "brief" contain seven specific sections in a specific order:

  1. A table of contents (TOC)
  2. A table of citations and authorities (TOA)
  3. A "statement of the nature and stage of the proceedings"
  4. A summary of argument
  5. A "concise statement of facts"
  6. An argument
  7. A short conclusion.

These look simple, but they trip people up sometimes. Here are some tips for each section.

Required Sections for Every Opening and Answering Brief

TOC …

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The Very Worst of the Worst

Nathan R. Hoeschen, March 4, 2025
101

OOOF!
OOOF! Zachary Kadolph, Unsplash

As I was reading through Judge Andrews' opinion in Election Systems & Software, LLC v. Smartmatic USA Corporation, C.A. No. 18-1259-RGA (D. Del. Feb. 28 , 2025)—a fairly standard opinion denying a motion for attorney's fees—I noticed an interesting callout:

It is within my discretion to find a case exceptional on the grounds of a plaintiff's meritless section 101 argument so as to "deter similarly weak arguments in the future."On the rare (and I believe only) occasion that I have done so, however, the patent asserted was obviously unpatentable. See Finnavations LLC v. Payoneer, Inc., 2019 WL 1236358, at *l (D. Del. Mar. 18, 2019) ("I have rarely been more confident …
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Plaintiff Succeeds at Forcing Discovery Pending a Motion to Dismiss Before Judges Connolly and Tennyson

Andrew E. Russell, March 3, 2025
Motion to Stay Motion to Dismiss

Discovery in D. Del.: this train ain't stoppin! Probably.
Discovery in D. Del.: this train ain't stoppin! Probably. Alistair MacRobert, Unsplash

When I started practicing here in the District of Delaware (the decade before last), the typical advice was that a patent case would proceed to scheduling and discovery even if the defendant files a motion to dismiss. Lately, though, several of the District of Delaware judges have been holding off on initiating the FRCP 16 scheduling process when the defendant files a motion to dismiss.

Often, as we've discussed, a smart plaintiff in that situation will file a letter asking the Court to direct the parties to conduct an FRCP 26(f) conference, so that discovery can move forward. Most often that seems to work. …

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