Leave to file early summary judgment is not often granted in this District. The circumstances in which the Court may permit early SJ are usually narrow: for example, where a question of law appears to be dispositive of the entire action, and/or where the moving party agrees to forego its ability to file a motion on the same grounds later.
It is safe to assume that openly violating the Court's scheduling order right before you ask to file an early motion for summary judgment of invalidity under Section 101 will not increase your chances of success.
Last week in Johnson Controls Technology Company v. BuildingIQ, Inc., C.A. No. 20-521-MN, Judge Noreika forcefully rejected the defendant's request to file such a motion just days after the defendant had stonewalled during the claim construction process, causing the parties to miss the joint claim chart deadline.
After the deadline passed, the Court had ordered that "the parties shall show cause why the Joint Claim Construction chart was not submitted" on the deadline.
In response, the plaintiff explained that the defendant had not provided any proposed constructions prior to the deadline for the chart. The defendant admitted its delay, chalking it up to ongoing mediation and the burden of claim construction. The defendant's letter suggested that the Court stay claim construction to focus instead on its Section 101 challenge to the five patents-in-suit. The letter included a mini-brief on the Section 101 issues.
Judge Noreika was not swayed, however, and responded as follows:
Defendant's request to file an early motion for summary judgment and to stay the claim construction proceedings is DENIED. Defendant shall provide constructions for the terms that need to be construed (which shall be substantially narrowed from the current 58 proposed terms/phrases) to Plaintiff by tomorrow, 10/22/2021. IT IS FURTHER ORDERED that the parties shall meet and confer to discuss the proposal and shall file the joint claim construction chart no later than 10/29/2021. Failure to comply with this Order by Defendant may result in sanctions.
We've written about Judge Noreika's limit on proposed terms in the claim construction process - 58 terms is well above what she usually permits.
This is not the first bump in the road for the defendant in this case. Its Delaware counsel moved to withdraw earlier this year citing "a breakdown in the attorney-client relationship."
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