A Blog About Intellectual Property Litigation and the District of Delaware

"Hmm, I wonder if the Court would do two trials..." Juan Rumimpunu, Unsplash

Defendants are often looking for ways to resolve cases early—§ 101 motions to dismiss, motions for judgment on the pleadings, early summary judgment motions, and so on. Sometimes these can succeed, but it can vary a lot depending on the judge and the circumstances.

Here is one I haven't seen before: In Ravgen, Inc. v. Biora Therapeutics, Inc., C.A. No. 20-1734-RGA-JLH (D. Del.), the defendant moved for the Court to schedule a one-day bench trial on inequitable conduct just after the close of expert discovery, and before the summary judgment deadline—around 7-10 months before trial.

Their logic was that a "single one-day bench trial" could eliminate the need to hold 4 jury trials. They cited a related case in California where the judge scheduled just such a one-day bench trial on inequitable conduct. But that trial was never held, because the case settled.

They must have known this was a bit of a long shot. They portray the inequitable conduct trial as a one-day affair, but it's not. The Court would probably need to have a pre-trial conference and pre-trial order for that one-day bench trial, sucking up time. The parties would likely have disputes regarding the conduct of the trial.

Beyond that, the Court doesn't typically rule at trial in a bench trial. Instead, it receives post-trial briefing and issues a trial opinion. That's a lot more than a one-day endeavor. And if the Court were to instead decide inequitable conduct after trial, as is more common, the case might settle or the jury might find no infringement—saving the Court from having to address the issue.

Timing wise, the trial would also occur just before summary judgment, so the Court would be holding trial on inequitable conduct, presumably issuing a trial opinion, and then immediately receiving briefing on summary judgement in advance of the next four trials.

Unsurprisingly, the Court rejected this idea:

ORAL ORDER: Defendants' Motion to Set an Early Inequitable Conduct Trial . . . is DENIED. The Court is not persuaded under the circumstances that holding an inequitable conduct bench trial a year before the scheduled jury trial is the most efficient way to proceed with these cases. Ordered by Judge Jennifer L. Hall on 9/8/2023.

Ravgen, Inc. v. Biora Therapeutics, Inc., C.A. No. 20-1734-RGA-JLH, D.I. 203 (D. Del. Sept. 8, 2023).

You can't blame them for trying. And now we have another data point about what is likely to work, or not work, in reaching early resolution.

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