A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Congestion

Delaware by the Digits: 2024 Federal Court Management Statistics Show D. Del. Remains Busy

Emily S. DiBenedetto, April 28, 2025
Congestion Scheduling

Never-before-seen photo of Mark Twain issuing his famous quote about statistics.
Never-before-seen photo of Mark Twain issuing his famous quote about statistics. Emily DiBenedetto, displayed with permission

The Administrative Office of the U.S. Courts prepares various statistical reports on behalf of the Federal Judiciary, including the Federal Court Management Statistics, which are released quarterly. The most recently released batch of data comes from December 31, 2024. You might see these data cited occasionally in motions to transfer, as I happened to notice in a District of Utah opinion denying a motion to transfer to the District of Delaware.

The first trend is that—surprise!—our judges are very busy.

There have been an average of nearly 2,400 pending cases at any given time over the last six years, and total District of …

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Judge Williams Rejects Challenge to Court's SJ Ranking Procedures, Notes Counsel's "Flagrant Typos and Inconsistent Formatting"

Andrew E. Russell, April 7, 2025
Summary Judgment Congestion

Attorney tilting at windmill
AI-Generated, displayed with permission

Back in 2021, Chief Judge Connolly instituted a new ranking procedure for summary judgment motions in his cases, in which parties rank their SJ motions and, if the top-ranked motion is denied, all lower-ranked motions are denied as well. The Court later expanded that procedure to encompass Daubert motions as well. Judge Williams has adopted it (for SJ motions only), and Judge Noreika has experimented with it—although at least one other judge has declined to adopt it.

To put the procedures in context, judges on the Court have long applied various measures to control the workload generated by summary judgment motions. Former Chief Judge Sleet, for example, required parties to request leave before filing summary judgment …

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New D. Del. Case Filings Up This Month?

Andrew E. Russell, March 28, 2025
Congestion DED

I'm not sure why the AI image generator made the judge so much bigger than the traffic they are directing, but it seems somehow appropriate.
I'm not sure why the AI image generator made the judge so much bigger than the traffic they are directing, but it seems somehow appropriate. AI-Generated, displayed with permission

I've noticed, and heard from others, that it seems like there were a lot of new case filings in the District of Delaware this month.

I was curious if that's true, so I did some unscientific research based on how many PACER new-case e-mails I've received. So far, for March 2025, I've seen 127 of these. That's more than any of the 16 prior months, only one of which broke 100. And it's quite a bit more than the 49 I received in January, or the 74 I received in February.

March of last year (2024) was busy as well, with 97 such e-mails. But, even if we get no more filings today or Monday, this year's number will top last year's by more than 30%.

Of course, not all cases are the same. A litigation campaign by an NPE against many defendants is very different from a true competitor patent litigation. From a quick review, the filings this month look like a mix of both. And these include a mix of various other civil filings, not just patent cases. So it's hard to say just how big of an increase in actual workload it may be.

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Have Patent Case Referrals to Visiting Judges Slowed?

Andrew E. Russell, Nov. 4, 2024
Congestion DED

ChatGPT comes through again...
ChatGPT comes through again... AI-Generated, displayed with permission

At the FCBA's 2024 Bench and Bar, some of the speakers mentioned that referrals to visiting judges referrals to should be slowing. I've noticed that that seems to be correct — it feels like there have been fewer referrals to visiting judges lately.

Some basic Docket Navigator searches seem to confirm it. I found zero new referrals to visiting judges in the last three months (not counting related-case referrals). That's the longest gap we've had this year, after batches of visiting referrals in January, February, April, July, and on August 1. But Docket Navigator also says that there were even longer gaps last year, including one from January - May and another …

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The Jumara Factors Strike Again

Andrew E. Russell, Aug. 26, 2024
Motion to Transfer Transfer

Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>. Who wouldn't want to litigate here? These guys, obviously.
Wilmington, DE. Who wouldn't want to litigate here? These guys, obviously. Andrew Russell, CC BY 2.0

We've talked a lot about how the Jumara factors, which govern how courts in the Third Circuit exercise their discretion on motions to transfer, are pretty tough on plaintiffs. Patent cases seems to stick more often than not, but plaintiffs with other claims, such as false advertising, may not be so lucky.

Judge Andrews granted a motion to transfer in a false advertising case on Friday. Here's how the factors broke down:

Plaintiff's Choice of Forum: This always favors plaintiff, and …

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A New Technique? Peicemeal Claim Construction Opinions Issued as Individual Oral Orders

Andrew E. Russell, Aug. 9, 2024
Congestion Claim Construction

I couldn't find a picture for this. Just imagine each leaf is an individual claim construction oral order.
I couldn't find a picture for this. Just imagine each leaf is an individual claim construction oral order. Erol Ahmed, Unsplash

I've noticed that, since November of last year, Judge Burke has been issuing claim construction opinions in some cases in the form of a series of oral orders on the docket, rather than a formal memorandum opinion or an order with footnotes. I thought I'd flag this so that people know what may happen if you have claim construction in a case before Judge Burke.

I first saw the Court construe terms via oral orders on the docket in November 2023, in The Nielsen Company (US), LLC v. TVision Insights, Inc., C.A. No. 22-057, D.I. 140-141 ( …

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Unsolicited 8-Page Letter to the Court Works, Results in Permission to File Early SJ

Andrew E. Russell, July 22, 2024
Congestion Early SJ

No Dogs Allowed
AI-Generated, displayed with permission

It's usually risky to send long, unsolicited letters to the Court seeking relief, particularly with extensive argument. Generally you are well served to keep letters short and limited or you may annoy the Court.

The Court frequently says that it prefers parties to make requests for relief by motion rather than letter. This is even included most (maybe all) of the judges' form scheduling orders:

Applications by Motion. Except as otherwise specified herein, any application to the Court shall be by written motion. Any non-dispositive motion should contain the statement required by Local Rule 7.1.1 [that the parties have verbally met-and-conferred with local counsel on the line].

But the Court doesn't always enforce this. It's not …

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D. Del.'s New Magistrate Judge Announced!

Andrew E. Russell, July 8, 2024
Congestion Judges

District Court Seal

We heard from the Court last week that it has selected a new magistrate judge for the District of Delaware: Eleanor G. Tennyson.

The announcement describes her background:

The United States District Court for the District of Delaware is pleased to announce its selection of Eleanor G. Tennyson as a United States Magistrate Judge. Ms. Tennyson fills the position vacated by Judge Jennifer Hall upon Judge Hall’s elevation to the District Court.
Ms. Tennyson is an honors graduate of Grinnell College and received her master’s degree in chemistry from the Clemson University Graduate School of Chemistry. Ms. Tennyson earned her law degree from the University of Iowa College of Law where she was managing editor of the Iowa Law Review. …
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5-Body Problem

Nathan R. Hoeschen, June 13, 2024
Meet-and-Confer Discovery Dispute

Bringing a discovery dispute is a bit of a 3-body problem. At any given time, you've probably got a half dozen complaints with what the other side is doing. When one boils over into a dispute you have to grapple with whether you should just bring all of them—and risk looking unreasonable—or just address the most pressing and risk having to raise serial disputes, which might look even worse. The push and pull can quickly become insoluble.

Guillermo Ferla, Unsplash

Luckily, we got an Order from Judge Burke this week that should make this calculus slightly easier going forward.

The defendants in Bardy Diagnostics, Inc. v. Vital Connect, Inc., C.A. No. 22-351-CFC-CJB, D.I. 97 (D. Del. June 11, 2024) (Oral Order) brought the first discovery dispute of the case (by either party) via judge Burkes usual procedure of filing a letter listing the disputes.

The disputes read as the usual humdrum list of custodians not searched and rogs insufficiently answered. The only thing out of the ordinary, is that there were 5 of them included in the letter.

Judge Burke responded to the request for a teleconference the next day with ...

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Judge Noreika Denies § 101 Motion Without Addressing Merits Where Scheduling Order Permits Assertion of Additional Claims

Andrew E. Russell, May 10, 2024
MTD Motion to Dismiss

Pixelated Game Over screen on an oversized PAC-MAN arcade machine
Sigmund, Unsplash

Judge Noreika issued an interesting order yesterday denying a § 101 motion to dismiss. According to the docket, shortly after the defendant filed its motion to dismiss—and contrary to what we found when we last looked at this—the Court directed the parties to meet-and-confer on a proposed schedule.

While the motion to dismiss was pending, the Court held a scheduling conference and issued a scheduling order. In it, the parties agreed to a real case narrowing proposal (without court intervention!), with plaintiff to initially cut back to 20 asserted claims per patent and 50 total by initial contentions, and then further cut back to 25 total just before final contentions.

After the Court entered the schedule, …

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