A Blog About Intellectual Property Litigation and the District of Delaware

Envelope with Letter
Brando Makes Branding, Unsplash

One common question for local counsel is "can we file something asking the Court to rule on our motion"? And the answer is usually something along the lines of "no," except in certain situations.

Last week we wrote about an example of the risks of an unwarranted request to expedite consideration of a motion.

This week I saw an example of a letter near the other end of the spectrum, in which a party asked gently urged the Court to consider a pending motion and got a good result.

A Letter That Worked

Plaintiff had moved for leave to amend their complaint to add two patents to a five-patent case, where all of the seven patents were from different families. Briefing completed about two and a half months before the first claim construction briefing deadline.

After just six weeks, Plaintiff filed a letter asking for the Court to rule on the motion to prevent issues with the claim construction briefing, which at that point was a month away:

Dear Judge Andrews,
Plaintiffs have moved to amend their complaint to add two patents to this case (the “Motion”). (D.I. 49). The motion to amend was filed well in advance of the agreed upon deadline for amending pleadings, and Plaintiffs included with their complaint detailed infringement claim charts. See D.I. 49; D.I. 51-2, Exs. Z, AA.
Briefing on the Motion has only been complete for 6 weeks and Plaintiffs are fully aware of Your Honor’s heavy motion docket. Yesterday, however, the parties exchanged terms for construction and opening claim construction briefs are due April 2. If possible, Plaintiffs respectfully request a ruling on the Motion at the Court’s earliest convenience with the hope of incorporating the two patents in Plaintiffs’ proposed amended complaint into the claim construction briefing schedule without major adjustments to the case schedule.

It worked! Judge Andrews granted the motion the next day:

ORAL ORDER: Plaintiffs motion to amend (D.I. 49) is GRANTED. I do not see undue delay, and Defendant basically concedes that any prejudice can be pretty easily ameliorated. The Court is not concerned about the prospect of a five-day trial with seven patents from seven families. That scenario will never come to pass. Plaintiffs are limited to asserting five claims each in the two new patents. Plaintiffs need to make that election within one week. To the extent amendment makes the current schedule inefficient, the parties should agree upon a new schedule. All claim construction needs to be done at the same time. . . .

Would a letter like this work out well in every case? No.

But it's worth noting that the plaintiff's short letter flagged an actual scheduling issue, gently demonstrated—in a single sentence—that the motion was a straightforward one for the Court to resolve, and couched it all in language showing an awareness of the Court's busy docket. Nice.

If you enjoyed this post, consider subscribing to receive free daily or weekly e-mails about any new posts.


Similar Posts