Trial dates in Delaware generally tend to stick, with certain exceptions (e.g., parties moving to extend the schedule, particularly the dispositive motion deadlines).
We saw an example of that this week in International Business Machines Corporation v. Zynga, Inc., C.A. No. 22-590-GWB (D. Del.). There, the defendant tried to delay trial based on schedule issues, an O2 Micro issue, and to permit expert report supplementation based on potential new evidence. The Court didn't go for it:
ORAL ORDER: The Court has reviewed the parties' letters regarding the trial schedule (D.I. 445, 449, 450). Zynga's request to alter the trial schedule is DENIED. . . . Zynga further requests to move the trial date to April 2025. Zynga argues that this request is warranted to increase time between the Court's dispositive motion rulings and trial, to permit the filing of a new O2 Micro issue, and to permit supplementation based on newly produced evidence and a trial scheduled to proceed in June. Courts routinely resolve dispositive motions and O2 Micro issues in the weeks leading up to trial; thus, Zynga's arguments on these factors do not constitute good cause to delay the trial date. Also, Zynga has not identified why supplementation of expert reports from a trial in June 2024 would require pushing a trial in September 2024 to April 2025. With regards to the new evidence, Zynga had the opportunity to review the evidence during discovery, but opted not to, relying on a representation that the data was fragmented. Rakuten (a defendant in another case) recovered that data, and IBM produced it to Zynga. Zynga has not identified any material new information that it has uncovered or any specific opinions that it intends to supplement. In fact, Zynga admits that the scope of required supplementation "is currently unknown", and it has not shown that any of the data is relevant or requires the supplementation of expert reports. D.I. 445 at 3 n. 3. Therefore, the Court will not move the trial based on some hypothetical supplementing of expert discovery, particularly when there is still approximately four months remaining before trial for the parties to complete any necessary supplementing of expert discovery, if any is ultimately warranted.
Id., D.I. 451.
This order will likely be useful for the simple citation that it's not unusual for the Court to resolve O2 Micro issues in the lead-up to trial.
It looks like Zynga asked for a significant delay here—pushing back the trial by seven months. It also asked for three extra trial days, expanding the trial from 5 days to 8 days. The Court didn't go for that either:
Zynga again requests an increase in trial days from five (5) to eight (8). The Court has previously denied this request, but stated that "[i]n the event that substantial differences between WWF1, NWWF, and WWF2 are discovered that make a five-day trial impracticable, the Court may reconsider the request before trial." D.I. 287. Zynga has not identified any such differences, and the Court does not believe that it is impracticable to try a case with two (2) patents and ten (10) claims in a five (5) day trial, given the overlap between the claims. To the extent there are differences in infringement theories across games, IBM has the burden of proving infringement and the parties will be impacted equally. Moreover, the Court's resolution of dispositive motions may narrow the case, as Zynga itself recognizes.
Five days is the most common length for a D. Del. patent trial in my experience, and the Court usually doesn't seem eager to expand it—although you do occasionally see longer trials for complex cases (we had a 10-day trial earlier this year), or fewer than five days if there are limited issues. But simply having two patents and potentially up to 10 asserted claims (a number which will probably be cut back), between two parties, isn't all that unusual for a 5-day trial.
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