My wife had a baby yesterday! We'll be taking a brief blog intermission, as I don't want to leave Nate to man the ship on his own. We'll be back soon.
Entries for date: August 2025
Judge Andrews had an interesting decision yesterday on the hypothetical negotiation date in an ANDA case.
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 ANDA 12 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 …
Yesterday, visiting Judge Barker granted a motion to transfer in MCP IP, LLC v. Velocity Outdoor Inc., C.A. No. 24-683-JCB (D. Del.). The Court's opinion is lengthy and thorough, and it looks like the kind of analysis that is going to be cited quite a bit in future transfer motions.
I won't summarize the whole opinion, but a couple of points stood out to me as worth noting for those who may face (or file) transfer motions in patent cases.
The case was filed in Delaware by a company headquartered in Wisconsin, against a Delaware corporation headquartered in New York. The defendant moved to transfer the case to Wisconsin based (in part) on the fact that the accused products are manufactured there by a subsidiary of the defendant.
The Court applied the Third Circuit's Jumara factors, which—as we've observed in the past)—can be tough to apply consistently, and can tend to favor transfer in IP cases.
Plaintiff's Forum Preference - This is the factor that consistently favors plaintiff. As the Court here noted, different judges have given this factor differing amounts of weight depending on the defendant's connection to Delaware. Judge Barker decided to give it its full weight despite the fact that the plaintiff here had no connection to Delaware:
[T]he District of Delaware has given the plaintiff’s choice different weight in different cases. In some, it discounted the weight of the plaintiff’s choice where the plaintiff lacked any connection to the forum state. . . . In others, it reasoned that the plaintiff’s connection to the forum has no bearing on the factor. . . . To ensure that plaintiff’s choice of forum is not lightly disturbed and to avoid double counting factors, this court will assume that this factor remains paramount and is not dampened by plaintiff’s lack of connection to Delaware. Cf. Rampart, 2025 WL 227287, at *2 (“Many of the reasons for lessening the importance of a plaintiff ’s choice in forum are subsumed and given weight under [other] Jumara factors . . . .”). Accordingly, this factor weighs strongly against transfer.
MCP IP, LLC v. Velocity Outdoor Inc., C.A. No. 24-683-JCB, at 11 (D. Del. Aug. 19, 2025).
Here are notes from some of the more interesting Jumara factor analyses here:
Whether the Claim Arose Elsewhere - The Court declined to hold that a patent case like this arises everywhere the defendant sells infringing products. It noted that the products are ...
Judge Burke unsealed an interesting opinion last week on the applicability of Lanham act claims to pharmaceuticals.
In Vanda Pharms., Inc. v. MSN Pharms., Inc., C.A. No. 24-505-JLH (D. Del. July 31, 2025), the Plaintiff accused various generic drug manufacturers of violating the Lanham by allegedly making false statements in their label and advertisements. In particular, Plaintiff alleged that the Defendants described Plaintiff's product "Hetlioz" as the brand reference for their generic products when "the reference product used in Defendants’ Bioequivalence Study was not actually Hetlioz, or because that study was so flawed that it undermines any assertion that Defendants’ product is bioequivalent to Hetlioz." Id. at 14 (quoting complaint).
The issue was …
Judge Burke issued an oral order on Thursday in OmniVision Technologies, Inc. v. RE Secured Networks, LLC, C.A. No. 24-187-JLH-CJB (D. Del.) expressing frustration due to the parties' inadequate claim construction briefing, and the resulting "inefficient" Markman hearing.
The parties submitted their joint claim chart back in March, identifying seven groups of terms. For three of the seven groups, the patentee offered positions like "Needs no construction" or "Not indefinite." D.I. 78-1 at 2-6. Some of these term groups were a bit odd (including, for example, a group called "preambles," which addressed three separate preambles across six claims spanning three patents). Counted separately, the parties sought to construe more than the 10 terms …
In February 2023, we wrote about a case by Getty Images against Stability AI involving copyright claims on AI-generated content. That case was filed near the start of the current AI mania, and it looked to potentially be significant.
Since then, the case has suffered from some party-driven delays. The parties agreed to extend the answer deadline, and then Getty Images filed an amended complaint. D.I. 12, 13. This was followed by another stipulated extension, and a motion to dismiss or transfer. D.I. 15, 16.
The Court then granted a motion for jurisdictional discovery, D.I. 30, and that process seems to have gone on for about a year, until Getty …
Drafting a proposed order can be a fraught exercise. It's easy to leave off some portion of the relief you really want, and then face a later argument that its been waived. That's why you'll often see proposed orders that just make anodyne statements that the motion is granted.
But a well-drafted proposed order can be a source of great power as well. Such was the lesson of Yesterday's opinion in Attentive Mobile Inc. v. Stodge, Inc., d/b/a/ Postscript, C.A. No. 23-87-CJB, D.I. 728 (D. Del. Aug. 14, 2025) (Mem. Order).
Postscript moved for summary judgment "ON ATTENTIVE’S CLAIMS OF INFRINGEMENT OF THE ʼ887, ʼ897, AND ʼ074 PATENTS." Judge Burke ultimately granted the motion, at which point the parties disputed whether the motion encompassed claims for induced infringement, or only direct infringement.
Judge Burke found that the motion covered both, citing the unequivocal statements in the proposed order Postscript sought "entry of judgment in Postscript's favor that US Patent Nos. [whatever] are not infringed."
In the Court’s view, this language—i.e., language asserting that the Motion was putting at issue all of Attentive’s “claims of infringement”—was important. There are various ways that an accused infringer in a patent litigation can be said to have engaged in “infringement” of a patent: e.g., via direct infringement, indirect infringement (which includes induced infringement, at issue here, and contributory infringement), joint infringement and/or willful infringement. If an accused infringer files a motion that facially seeks summary judgment on all of the patentee’s “claims of infringement” against it—and if in that case the patentee has a claim of induced infringement—then the patentee should be on alert that its induced infringement claim is among the “claims of infringement” that is being put at issue by that motion.
Id. at 2-3 (internal citations omitted).
The Court also went on to ...
In our recent post about the Court finding a protective order violation by an inventor / principal / expert / man of many hats, we promised a second post about how the accused infringer used PDF metadata from PACER in a clever way to establish the protective order violation. This is that second post.
Basically, the parties disputed who had edited a document containing Attorney's Eyes Only information. The inventor had switched counsel, but the moving party claimed that the edits were made by the inventor, not counsel.
The moving party showed that the PDF with the AEO information included highlights, and that the metadata …
Everyone has a favorite state. Maybe it's where you grew up. Maybe it's where you went on vacation as a child. Maybe it's just the first state?
Not everyone is so fortunate to live in their favorite state -- but if you play your cards right, you can apparently choose to be sued there.
The issue came up last week in Guangzhou Lightsource Elecs. Ltd. v. Pine Locks, C.A. No. 24-543-JCB, D.I. 30 (D. Del. Aug 5, 2025). Pine Locks (incorporated on the Isle of Mad) had allegedly filed a complaint with Amazon requesting that some of Gaungzhou's (a Chinese company) products be taken down because they infringed Pine Locks' patents. Guangzhou then …
On Thursday, visiting Judge Wolson issued an opinion in SmartSky Networks, LLC v. Gogo Business Aviation, LLC, C.A. No. 22-266-JDW (D. Del.) addressing several summary judgment motions, one of which sought to invalidate a claim of one of the asserted patents as indefinite.
The claim related to a communication system for in-flight wifi, and required that a base station for the equipment emit a radiation pattern that is "oriented toward a horizon." The defendant claimed that that language is indefinite, and the Court agreed:
Claim 1 of the ‘717 Patent requires a radiation pattern that …
