A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: May 2025

Leave It To The Experts

Nathan R. Hoeschen, May 8, 2025
Contention Interrogatories

As we've covered exhaustively, Delaware favors the use of contention interrogatories. As discovery requests go, these are often some of the more burdensome ones to deal with, and so the responding party will frequently respond with all manner of possible objections.

One response that I see from time to time is that a contention topic seeks information that is really the subject of an expert report, and thus that no response is necessary until the reports are due.

This is where expert reports come from
This is where expert reports come from AI-Generated, displayed with permission

This was exactly the approach that the defendant took last week in Astellas Pharma Inc. et al v. Sandoz Inc., C.A. No. 20-1589-JFB-EGT, D.I. 779 (D. Del. May 6, …

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Judge Williams Updates Scheduling Order with a Minor Tweak

Andrew E. Russell, May 7, 2025
Scheduling Orders Scheduling Order

Watcha got there? New ADR provision?
Watcha got there? New ADR provision? Zdeněk Macháček, Unsplash

It's always a good idea to keep up to speed on the judges' form scheduling orders. In their form orders, the judges set forth their preferences, and when those orders are entered in a case, they can override some of the local rules.

In the past, when the judges have updated their form scheduling orders, they have occasionally ordered that the updates to apply to pending cases. Sometimes, even absent such an order, counsel have been eager to apply the new procedures on their own.

(The last such change I recall was when judges started switching over to Judge Andrews' method of claim construction briefing, where the parties serve back-and-forth …

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Secrets, Secrets Are Sooooo Fun!

Nathan R. Hoeschen, May 6, 2025
Standing Trade Secret Misappropriation

AI-Generated, displayed with permission

Earlier this week, Judge Burke unsealed an opinion on what appears to be an issue of first impression for the district.

Biohaven Therapeutics LTD v. Avilar Therapeutics, Inc., C.A. No. 23-328-JLH-CJB (D. Del. Apr. 10, 2025) (R&R) is a trade secret case where the plaintiffs alleged that the defendants ... stole ... their trade ... secrets. The issue was that one of the plaintiffs, Biohaven, only had a non-exclusive license to the alleged trade secrets and thus defendant argued that they lacked standing to assert them.

Unlike in patent law, where dense treatises have been written about which types of license confer standing, the question of whether a bare non-exclusive license …

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Judge Andrews: Chances of IPR Institution Too Speculative to Support a Pre-Institution Stay

Andrew E. Russell, May 5, 2025
Pre-Institution Stay IPR

Roll the Dice
Leon-Pascal Janjic, Unsplash

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 …
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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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