A Blog About Intellectual Property Litigation and the District of Delaware

Form Scheduling Order
The Honorable Maryellen Noreika

Judge Noreika updated her form scheduling order yesterday. Here are the changes:

  • Separate deadlines for fact and expert discovery cut offs. Judge Noreika's old form orders, and several other judges' form scheduling orders, set a cut off date for "all" discovery and a deadline for substantial document production. But parties often also set a separate deadline for fact discovery, so that there is a clear delineation for when fact depositions and any remaining document production need to end before expert reports occur. This resolves that issue.
  • Joint claim chart changes. Intrinsic evidence must now be submitted in an appendix rather than with the joint claim chart. This may help with the common issue that parties often end up submitting material with the joint claim chart and then more material as exhibits to the claim construction briefing as issues arise. Now it will all be in one place.
  • Joint claim construction brief changes. If the brief exceeds 80 pages, the parties must explain why:
If the joint brief as submitted is more than 80 pages, the parties must certify that the page limits (or equivalent word counts) in the Scheduling Order have been complied with and provide a brief explanation (e.g., formatting issues, listing of agreed-upon terms) as to why the brief is longer than 80 pages.
  • Miscellaneous minor changes. Jury instructions, voir dire and special verdict forms are now due 7 business days instead of 3 business days before the PTC. The pretrial order must have numbered paragraphs (this has always been the norm). The order now also specifies that the trial will be a jury trial by default.

Judge Noreika made corresponding changes to her form ANDA scheduling order, and added a statement about trial day scheduling and timing that corresponds to the non-ANDA version. She also issued a new form scheduling order for non-patent bench trials, which generally mirrors her ANDA scheduling order but has some adjustments (looser MIL limits, no provision about expert report supplementation, and no dates for post-trial briefing in the PTO).

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