A Blog About Intellectual Property Litigation and the District of Delaware

Parties in Delaware can generally freely stipulate to many things that don't directly impact the Court, including common things like schedule adjustments, authenticity of documents, protective orders, and ESI procedures—as long as you stay away from trouble spots like increasing page limits or dates for dispositive motions or trial. But every once in a while a stipulation is denied, and it's always interesting when and why that happens.

Last month, the parties in ImmerVision, Inc. v. LG Electronics U.S.A., Inc., 18-1630-MN-CJB (D. Del.) filed a stipulation staying the action pending the outcome of objections to the magistrate judge's claim construction R&R. They noted that, if the R&R is adopted, plaintiff would stipulate to non-infringement and the action would go straight to appeal:

WHEREAS the parties agree that, if the District Court adopts the claim construction recommendation on the claim term “panoramic objective lens” in the Report and Recommendation, they will stipulate to a judgment of non-infringement based on such construction so that Plaintiff can appeal to the U.S. Court of Appeals for the Federal Circuit; . . .
IT IS HEREBY STIPULATED AND AGREED by the Parties, through their undersigned counsel, subject to the approval of the Court, that:
1. all current deadlines in the above-captioned consolidated cases as set forth in the June 8, 2021 Amended Scheduling Order are vacated;
2. within fourteen (14) days of the Court’s ruling on Plaintiff’s objections to the Report and Recommendation, the parties will file either a stipulation for entry of judgment, or a proposed scheduling order.

Shortly after the parties filed the stipulation, however, Judge Noreika denied it, noting that she was not convinced it would promote efficiency, and that it conflicted with her practices for claim construction:

ORAL ORDER re . . . Stipulation . . . Having reviewed the parties' stipulation, IT IS HEREBY ORDERED that the stipulation is DENIED. The district court judge does not generally address claim construction until the end of fact discovery and after the parties' exchange of final contentions. The Court is not convinced that changing its general procedure for this case will substantially "promote efficiency and avoid waste of resources." Thus, this case shall proceed on the current schedule with the parties providing final validity, invalidity, infringement and non-infringement contentions (and to the extent appropriate expert reports) under the parties' proposed constructions and the construction adopted by the magistrate judge to the extent such contentions can be made.

This week, about a month after the Court denied the stip, the parties in a related action tried again with a very similar stip. In that case, the Court had not yet entered a schedule at all, and the parties stipulated to stay the action pending resolution of claim construction in the first case. Magistrate Judge Burke denied that as well, for the same reasons:

ORAL ORDER: The Court has reviewed the parties' proposed stipulation requesting a stay pending the resolution of disputes in certain related actions . . . . After conferring with the District Judge, and in light of the District Judge's related order denying a stay request in those related cases, . . . the Court hereby ORDERS that the proposed stipulation is DENIED.

Thus, it seems clear that Judge Noreika does not permit the parties to stay an action pending objections to a claim construction R&R, even if the Court has not yet entered a schedule. So don't do that!

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