It can take quite a while to resolve summary judgment motions. In essentially every patent case they take up hundreds of pages of briefing accompanied by hundreds more pages of declarations, reports, and exhibits on the most arcane technical matters.
For this reason, all of our Article III judges' form scheduling orders (except Judge Andrews) explicitly instruct the parties to leave 3 or 4 months (3 for Judge Connolly, 4 for the remainder) between the close of briefing and the pretrial conference.
Because a modern patent trial tends to involve a great deal of back and forth on exhibit lists, designations, statements of facts, etc., the pretrial order is usually prepared -- or …
When you file a motion to dismiss in the District of Delaware, the case case go one of two ways, depending on the judge. Most of our current judges do not require discovery to move forward if a motion to dismiss is filed, at least absent action from the parties. Some District of Delaware judges, though, have required discovery to move forward pending a motion to dismiss. Former Chief Judge Stark made this explicit in his procedures, for example, and Judge Burke has also adopted this practice.
This seemingly minor difference in policy can make a huge difference in how a case proceeds. A complicated motion to dismiss can sometimes take a busy court anywhere from …
Coordination is a difficult concept to quantify. It's pretty easy to measure speed or strength or flexibility. But coordination is more domain dependent. As an example, I would bet that I am not the fastest, strongest or tallest lawyer in Delaware—but I will place $20 on myself in a game of horse against any DE lawyer. I extend this to a game of make it take it to any lawyer over 30 who promises they cannot dunk. DM me for deets.
In the patent law context, coordination is similarly vague. A plaintiff accuses multiple defendants with somewhat different products of infringing the same patents. It makes sense to have discovery all go together, but come trial, things often fall apart a bit as the parties argue over how distinct the cases really are.
Today's case is one of the few I've seen where the Court sua sponte raised the issue of how similar 2 related cases really are. TOT Power Control, S.L. v. Samsung Electronics Co., Ltd., C.A. No. 21-1305-MN, D.I. 290 (D. Del. Sep. 29, 2025), was related to a very similar case against Apple that had recently gone to trial and was currently in the midst of the usual JMOL/New trial briefing. Although trial was already scheduled in the Samsung case, Judge Noreika entered an order ...
"Just imagine this page holds one of the in-depth and fulsome post-grant review petitions we're totally going to file on these patents"Kelly Sikkema, Unsplash
I know some readers probably want an update on the protective order hearing. I expect that will be a hefty post of interest to all D. Del. litigants—but I need to get the transcript first. In the mean time, though, please enjoy this spare and jargon-filled post which is only going to be of interest to patent practitioners.
We've talked about pre-institutionstaysbefore, and how hard they are to achieve. What's even harder? A stay of patent litigation before a patent challenge has even been filed.
This train don't stop until the close of fact discovery (... unless the Court stops it)Jed Dela Cruz, Unsplash
The Court issued an oral order in airSlate, Inc. v. Inkit, Inc., C.A. No. 23-1307-RGA-SRF (D. Del.) yesterday, and it's a good reminder of a general rule that frequent D. Del. practitioners already know: once discovery starts, it generally proceeds even while a Rule 12 motion is pending.
The Court's order yesterday described how the defendant in airSlate had objected to producing its source code solely on the basis that a Rule 12 motion for judgment on the pleadings was pending:
Defendant agreed to produce source code in its response to Request for Production …
Before you get too excited, defendants, this case involved a scheduling order using Judge Connolly's form, which provides only a single round of infringement and invalidity contentions, and explicitly requires good cause to amend.
Most District of Delaware scheduling orders include two rounds of contentions (initial and final), with the second round typically coming around the close of fact discovery. It is unlikely to be as difficult to amend in cases like those.
Regardless, I thought this was an interesting result worthy of a post. In Cognipower LLC v. Fantasia Trading, LLC, C.A. No. 19-2293-JLH-SRF (D. Del.), the Court stayed the case …
As we've noted in the past, it's fairly routine to stay cases once an IPR is instituted. But the Court has at least once denied a stipulated stay where the IPRs were not yet instituted.
Last week the visiting Judge Choe-Groves denied a stipulated stay where the PTAB had instituted an IPR for two out of three patents-in-suit—leaving one patent not subject to an IPR, as the parties explained in the stip:
WHEREAS, Teladoc filed three petitions for inter partes review (“IPR”) (Nos. IPR2024-00618, IPR2024-00616; and IPR2024-00617) of the Asserted Patents;
WHEREAS, the Patent Trial and Appeal Board (“PTAB”) instituted IPRs on the ’554 and ’142 Patents on September 16, 2024 and September 17, 2024; …
Visiting Judge Murphy decided a stay motion in a patent action yesterday, and included language that could be helpful to any patent plaintiffs who are opposing an early stay.
In Ignite Enterprise Software Solutions, LLC v. NGData, US Inc., C.A. No. 23-1209 (D. Del.), the defendant moved for a 30-day stay after its lead counsel suffered a head injury in a car accident.
The Court moved shockingly fast (for a busy Court), requesting that the plaintiff respond within two days, and then ruling on the motion the same day the plaintiff responded—just two days after the initial paper.
The Court denied the stay due to prejudice to the patentee:
Writing this blog, I sometimes feel like an especially jaded film critic. Having seen so much, I can no longer get a thrill from from a well-constructed plot and competent acting. I can only be excited by Croatian claymation about murderous cetaceans, or a silent black and white documentary about a cat who eats figs.
All this is that I love a novel theory, and by Jove I've got one for you today.
In Samsung Elecs. Co., Ltd. v. Technical Consumer Prods., Inc., C.A. No. 23-186-JNR (D. Del. May 2, 2024), Samsung sued both the overseas manufacturer and seller of allegedly infringing products in one action. The seller moved to sever and stay the claims against it under the "customer suit" exception, arguing that the manufacturer was the "true defendant," while its role was "merely peripheral."
This was a bit odd, because the customer suit exception normally applies to cases where the actions are proceeding in different venues:
[C]ustomer-suit exception cases “typically arise” in the context of forum-shopping, “when related patent infringement actions are pending in different jurisdictions[.]” Basically, courts have concluded that the normal first-filed priority will give way when a suit against the re-seller was the first one filed. . . .Though courts have applied the exception when the manufacturer and re-seller are defendants in the same suit, they still do so with principles of forum selection in mind. For example, the customer-suit exception would apply if it would mean staying the case as to the re-seller to then transfer the case to a different and more appropriate venue for the lawsuit against the manufacturer.
Id. at 2-3 (internal citations omitted).
Judge Ranjan denied the motion, finding that the customer-suit exception did not provide a "general exception to a lawsuit against a manufacturer and re-seller":
The circumstances of this case don’t concern dueling lawsuits or forum selection issues, as there are no separate competing lawsuits, and no Defendant has contested venue or jurisdiction or would seek transfer to a different venue. Moreover, HGC and TCP are represented by the same counsel, so the inefficiencies created by forcing a “true defendant” and an unrelated “peripheral defendant,” such as one among many customers of the “true defendant,” to litigate together are absent here. In short, HGC hasn’t proffered a reason for the Court to grant its motion that furthers the spirit of the customer-suit exception.
Id. at 3.
Well it was a nice try anyway. The whole opinion is worth a read and goes into greater depth on the efficiencies that might be gained or lost by severance in similar situations.
Motions to stay are common as dirt, and about as interesting.
The factors are exactly what you expect them to be, and the Court has broad discretion to apply them. Most of these motions could be reduced to a checklist:
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