More Changes in Delaware: Judge Stark Revises Patent Case Procedures

by Foley & Lardner LLP
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Chief Judge Leonard P. Stark of the District of Delaware recently issued revised procedures for managing patent cases that are assigned to him. These revised procedures affect nearly every aspect of a case including scheduling, motions, discovery, claim construction, and trial. Indeed, many of these issues must now be addressed very early in the case. Practitioners who practice in the District of Delaware should familiarize themselves with these new procedures and plan their cases accordingly.

Judge Stark cites three general principles underlying his revised procedures:

  1. Early investment of judicial resources to identify the best schedule for each case;
  2. Initially treating each patent case as its own case, even if it is related to a case or cases that have already been filed; and
  3. Identifying and reducing or eliminating the areas that generally provide the highest likelihood for lengthy delays.

Procedures relating to scheduling, discovery, and certain motions are addressed immediately after assignment of a new patent case to Judge Stark. Within seven days of the assignment, the Court will issue a Referral Order referring all matters relating to scheduling and motions to dismiss, stay, or transfer venue to Magistrate Judge Christopher J. Burke. The plaintiff(s) must then file a proposed Procedures Order within seven days after the entry of the Referral Order. A form Procedures Order provides certain procedures for scheduling, discovery disputes, and motions to amend and strike. For example, instead of calling chambers to request a discovery dispute teleconference, parties will now be required to submit a joint letter. Prior to filing the joint letter, local and lead counsel for the parties must attempt to resolve the dispute through verbal communication. Additionally, discovery motions, motions to amend, or motions to strike must be submitted by letter briefs of up to three pages (rather than full briefs) and will be briefed on a condensed schedule.

Most notable, however, are the revised case management procedures that will likely affect case preparation and strategy the most. Judge Stark will no longer wait until all defendants have responded to the complaint to schedule a conference. Rather, within 10 days after any defendant has filed a responsive pleading or a motion, the Court will enter a Case Management Order requiring the parties to meet and confer and discuss each of the matters listed on the Court’s Case Management Checklist. The Checklist requires lead and local counsel for each party to discuss, either by phone or in person, an extensive list of issues related to discovery, claim construction, related cases, remedies, amendments, motions, summary judgment, and scheduling.

Some of the items on the Checklist may be particularly difficult to address at such an early stage of the case without proper preparation. For example, the parties are to discuss claim construction, including identifying the “1 or 2 most important terms requiring construction.” Another item on the list requires the parties to discuss whether there are related products that either Plaintiff expects or Defendant should expect will be added to the case. Thus, both plaintiffs and defendants must be prepared to address these types of issues at the very beginning of the case. Defendants in multi-defendant cases may even have to address these issues prior to filing a response to the complaint if a co-defendant has already responded.

After meeting and conferring about the items on the Checklist, the parties must jointly file the Checklist and their proposed scheduling order within 30 days of the Case Management Order. The Court will then schedule a Case Management Conference, which also serves as the Rule 16 scheduling conference, to be held on the record before Judge Stark and/or Judge Burke. At the conference, each party must be represented by lead and local counsel and counsel should be prepared to discuss each matter on the checklist. This case management and scheduling process will not generally be deferred due to the pendency of motions to dismiss, transfer, or stay.

In addition to procedures for scheduling, motions, and case management, Judge Stark provided new procedures and limits for summary judgment and Daubert briefing, pretrial orders, pretrial conferences, trial, and post-trial motions. Judge Stark also issued a revised form scheduling order and pretrial order. He stated that he will be highly receptive to proposals that narrow the case. He also set a goal of issuing all Markman rulings within 60 days after a Markman hearing.

With these revised procedures, practitioners should adjust their preparation and litigation strategy for patent cases assigned to Judge Stark. While some of the procedures may provide new strategic options, others require intense preparation very early on in the case. Moreover, there may be additional changes to come from other District of Delaware judges, given the fact that both Judge Stark and Judge Sue L. Robinson issued new patent procedures this year.

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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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