Earlier this month we talked about the required structure for briefs in the District of Delaware. As to the required "argument" section, I said "We all know what this is." Maybe I was wrong.
An "Argument" Section That Wasn't
On Friday, the Court denied a motion for summary judgment for violating the local rule on briefing structure, because it's "argument" section failed to conform to the local rule on briefing structure, LR 7.1.3(c)(1)(f), and had exceeded the page limits for briefing. Roger P. Jackson, M.D. v. NuVasive, Inc., C.A. No. 21-53-RGA, D.I. 443 (D. Del. Mar. 14, 2025).
Basically, the patentee moved for summary judgment of infringement. But, rather than laying …
Today, Chief Judge Connolly issued a memorandum order in Stirista, LLC v. Skydeo Inc., C.A. No. 23-856-CFC denying a Daubert motion in part because it sought to strike the expert's expert report rather than excluding his testimony.
The Court actually agreed that the expert's testimonyought to be excluded under Rule 702—if only the moving party had filed a better motion:
In its briefing filed in support of the motion, Stirista argues that "Mr. Kelleher's opinions and conclusions related to market confusion should be excluded [under Rule 702] as unqualified, unreliable, and unhelpful to a trier of fact." . . . Having read the parties' briefing on this question, I'm inclined to agree with Stirista. …
Our millions of daily readers will remember Andrew's post from last month on Judge Connolly's Order in Vestolit GmbH v. Shell Chemical LP, C.A. No. 24-1401-CFC (D. Del.). As a brief refresher, Vestolit had filed a 1782 application seeking to serve subpoenas on both Shell and its CEO. The papers, however, only mentioned subpoenas to be served on the corporation and referred to the individual subpoena only obliquely as attachments to the filing.
Bad attachmentAI-Generated, displayed with permission
Judge Connolly noted that this failure to specifically reference the personal subpoena may have been a violation of the lawyers' duty of candor and thus issued an order to show cause why they should not be sanctioned, and denied the application in its entirety pending the response.
Yesterday Judge Connolly issued his order on the sanctions issue and the underlying application. Probably most interesting to you, reader, is that the Court found that there had been no violation of the Rules of Professional Conduct:
I accept counsel's apologies for the Application's deficiencies, am persuaded that counsel did not intentionally withhold from the Court material facts in violation of Rule 3.3(d), and will, therefore, not deny the Application in toto.
Vestolit GmbH v. Shell Chemical LP, C.A. No. 24-1401-CFC (D. Del. Mar. 4, 2025).
The Court did, however, find that the problems with the original application were serious enough to warrant denying the application to serve the individual subpoena on the CEO:
[E]ven if this Court could have personal jurisdiction over Ms. Kline consistent with due process, I would exercise my discretion and deny the Application's request to subpoena Ms. Kline because of the seriousness of the deficiencies in the Application and supporting briefing I identified in the January 14, 2025 Memorandum Order. . . . Although, as noted above, I am persuaded that counsel did not intentionally withhold material information from the Application and briefing, to countenance such deficiencies by simply ignoring them would send the wrong message to counsel in this case and to the bar. Lawyers' professional obligations are at their highest when they seek ex parte relief, and judges, especially in busy courts like this one, necessarily rely not only on counsel's honesty, but also on their diligence, in ex parte matters.
I'm not going to blow the blog's budget on downloading all of the evidence in the 35 exhibits attached to the Rule 11 motion. But it looked like a lot.Christa Dodoo, Unsplash
Federal Rule of Civil Procedure 11, as most readers likely know, says an attorney making a filing certifies that the filing has factual support:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . . .
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery . . . .
If the opposing party has reason to doubt that an attorney has met their burden, it can threaten a Rule 11 motion. The procedure gives parties an opportunity to cure, though, and parties sometimes do.
Those motions are often threatened but, in practice, we don't see a ton of rulings on Rule 11 motions in the District of Delaware. So it was interesting to see the Court's ruling today in Central Santa Lucia, L.C. v. Expedia Group, Inc., C.A. No. 22-367-JLH (D. Del. Mar. 10, 2025).
That case involves a violation of a federal statute regarding the sale of certain property. To bring a case, the plaintiff must have acquired ownership of the property before a specific date: March 12, 1996.
The plaintiff in the case claimed it owned the relevant property as of the date. The defendant disagreed, and filed a Rule 11 motion seeking sanctions for filing a pleading that relied on fraudulently ...
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:
A table of contents (TOC)
A table of citations and authorities (TOA)
A "statement of the nature and stage of the proceedings"
A summary of argument
A "concise statement of facts"
An argument
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
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 …
Looks like someone got a hole in one. On Friday, Judge Hall issued a relatively short memorandum order granting a § 101 summary judgment motion, and it neatly encapsulates what § 101 analyses seem to be trending towards.
The Court found that the 10 asserted claims, across three patents, are all directed to a simple abstract idea:
I agree with Netflix that each and every one of the asserted claims is directed to “the abstract idea of collecting, organizing, and automatically displaying content (e.g., a playlist of Internet content).” . . . The asserted claims contain a lot of words, and some of those words sound complicated.[] But what the claims cover is not complicated. …
The Looming Parade of Horribles, AI-Generated, displayed with permission
I’m partial to percussion and noticed that there was a gaping hole of staccato in the rising swell of the IPDE music videos, subtle though it may have been in the background of Andrew's singing and Nate’s interpretive dance performances. Leaving the snare drum at home, today I chime in only with the lonely voice of a wistful triangle to supplement this week’s stories with a tale from a faraway land—the Eastern District of Texas.
Why do we in Delaware care about this opinion? It gave me a fresh appreciation for the orderly composition of Delaware scheduling orders. It involved a problem that cannot arise in a District of Delaware …
We first posted a reminder that reverse DOE and ensnarement exist back in 2021, and then again in 2023. But here, now, in 2025, we just got some nice guidance from the Court about ensnarement, and it seems like a great time to put out another reminder.
What Are They?
The Reverse Doctrine of Equivalents deals with a situation where the accused product literally reads on the claims, but is not actually doing what the patent is meant to cover. As we noted last time:
The [reverse doctrine of equivalents] rescues from infringement devices that literally satisfy the elements of a claim but perform the same function of the invention in a …
I hope some of you saw the musical video Andrew posted yesterday before it was taken down in a copyright strike by the Prince Estate due to his eerily pitch perfect parody. The costumes alone were worth the price of admission.
Honestly the photo doesn't do it justiceAI-Generated, displayed with permission
Hopefully tomorrow's video -- Injunction Junction -- fairs better.
Mallinkrodt Pharms. Ireland Ltd. v. Airgas Therapeutics LLC, C.A. No. 22-1648-RGA (D. Del. Feb 12, 2025). presented an interesting twist on the tried and true preliminary injunction formula.
The likelihood of success analysis was pretty standard (although it touched on one of my favorite issues -- drug interaction). Ditto for irreparable harm, with the Court …
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
