Eastern District Implements New Fast Track for Patent Cases

by Jackson Walker

On February 25, 2014, Chief Judge Leonard Davis unveiled an expedited case management procedure available to patent litigants in the Eastern District of Texas. The new procedure, known as "Track B," is an alternative to the management procedures provided for by the local rules ("Track A"). (See General Order No. 14-3, dated February 25, 2014.)

Although Track B will be available in all patent cases, Track A remains the default procedure. Track B will not govern a case unless there is a joint and timely notice of election by all of the parties or the court on its own designates the case as Track B. Parties electing Track B must file their notice of election on or before the date by which all defendants have filed an answer or motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).

Parties litigating under Track B will notice several fundamental distinctions between this new alternative and Track A, particularly with respect to the amount of key information they must exchange within the first three months of suit. Just two weeks after the defendant files its answer, the plaintiff must produce detailed information traditionally not disclosed until much later in the discovery process, including its licenses and any settlement agreements related to the patent at issue.

The defendant must then produce similarly crucial information just thirty days after filing its answer. Specifically, the defendant must produce any sales information involving not only the accused product, but also "all reasonably similar products" along with its initial disclosures.

Once the defendant has satisfied its disclosure obligation, the plaintiff has two weeks to file a good faith estimate of its expected damages as well as a description of how it arrived at that estimate. This estimate will not limit the plaintiff's damages in court.

The defendant will then have two weeks to respond with its invalidity contentions. The plaintiff has five days from the date on which it served its invalidity contentions to file a notice that the case is ready for the management conference.

The Track B procedures are summarized below:

Filing/Required Action Track A Track B1
Infringement contentions At least 10 days before the Initial Case Management Conference2 14 days after all defendants file an answer or FED. R. CIV. P. 12(b)(6) motion
Initial disclosures pursuant to FED. R. CIV. P. 26(a)(1) Within 14 days after the parties' FED. R. CIV. P. 26(f) conference3 Within 30 days of service of plaintiff's infringement contentions
Summary sales information regarding accused products   –   Within 30 days of service of infringement contentions
Good faith estimate of damages   –   Within 14 days of service of initial disclosures & summary sales information
Invalidity contentions 45 days after the plaintiff serves its infringement contentions4 14 days after plaintiff's good faith estimate of damages (about 2 months after defendant's original answer)
Confer pursuant to FED. R. CIV. P. 26(f) At the Initial Case Management Conference5 At least 14 days before the date set for the management conference

1General Order No. 14-3, dated February 25, 2014.
2P.R. 3-1.
3FED. R. CIV. P. 26(a)(1)(C).
4P.R. 3-3.
5P.R. 2-1(a).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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