When I started practicing here in the District of Delaware (the decade before last), the typical advice was that a patent case would proceed to scheduling and discovery even if the defendant files a motion to dismiss. Lately, though, several of the District of Delaware judges have been holding off on initiating the FRCP 16 scheduling process when the defendant files a motion to dismiss.
Often, as we've discussed, a smart plaintiff in that situation will file a letter asking the Court to direct the parties to conduct an FRCP 26(f) conference, so that discovery can move forward. Most often that seems to work. …
