On June 11, 2014, the United States District Court for the District of Colorado announced its adoption of a Pilot Program implementing Proposed Local Patent Rules. The Local Patent Rules and Proposed Scheduling Order will apply to all patent cases filed in the District of Colorado on or after August 1, 2014. Cases filed prior to August 1, 2014, will continue with their existing scheduling order, but to the extent that such cases do not have an issued scheduling order, parties should consider whether to voluntarily comply with the Local Patent Rules.
In time for the opening of the Regional Patent Office in Denver, the District of Colorado joins 31 other federal courts and only one other court in the Tenth Circuit with local patent rules. Here are some key rules to consider when litigating a patent case in Colorado:
-
Protective Orders: Confidentiality is no longer a reasonable basis for withholding documents. Instead, parties may designate documents as "confidential" or "for attorney's eyes only" before the entry of a protective order. However, there is no standard protective order for the District. Instead parties are advised to either submit a stipulated protective order or dueling orders with up to a two-page brief supporting their respective positions (D.C.COLO.LPtR 3).
-
Scheduling: The standard Proposed Patent Scheduling Order sets forth presumptive deadlines for infringement contentions, invalidity contentions and claim construction, which are all accompanied by required disclosures (D.C.COLO.LPtR 4-11; Proposed Scheduling Order in Patent Cases).
-
Invalidity: The Rules specifically address invalidity of design patents, requiring parties to explain why the prior art does not invalidate the patent (D.C.COLO.LPtR 10(c)).
-
Claim Construction: The District of Colorado does not limit the number of claim terms to be construed (D.C.COLO.LPtR 14). Unless otherwise ordered, the party opposing infringement and/or asserting invalidity files the opening claim construction brief (D.C.COLO.LPtR 14). Claim construction briefs are limited to 10,000 words a party; to the extent that a party files both an opening and reply brief, both must be counted under the 10,000 word limit (D.C.COLO.LPtR 17).
-
Discovery: Parties seeking to exceed more than 10 depositions, 25 interrogatories, 25 requests for production and 25 requests for admission should be prepared to justify their request.
-
ADR: ADR is not required, but is still encouraged under the Local Civil Rules.
The purpose of the Local Patent Rules is to bring uniformity and efficiency to patent litigation within the District. However, their application is not intended to be rigid and mechanical. Rather, the Colorado District Court retains significant discretion to tailor scheduling, disclosure and briefing to the particular circumstance of a given case.