A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Scheduling Order

Judge Noreika Reminds Parties of Her Preference That Markman Take Place After Final Contentions

Andrew E. Russell, June 11, 2025
Stipulation Scheduling Order

Apparenly this is a picture of a large magnet, rather than a particle accelerator. Either way, it looks like someone left their binder in it.
Apparenly this is a picture of a large magnet, rather than a particle accelerator. Either way, it looks like someone left their binder in it. Brandon Style, Unsplash

We've talked about this before, but it was so long ago that I think it's worth pointing out again. Typically, left to their own devices, parties in patent cases will schedule initial contentions, then claim construction and a Markman hearing, and then final contentions.

In theory, the final contentions can then reflect claim constructions. In practice, it doesn't always work out that way, given that a Markman opinion may come out after the hearing anyway. If you want to have constructions before final contentions, you need to leave a fair …

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Judge Williams Updates Scheduling Order with a Minor Tweak

Andrew E. Russell, May 7, 2025
Scheduling Orders Scheduling Order

Watcha got there? New ADR provision?
Watcha got there? New ADR provision? Zdeněk Macháček, Unsplash

It's always a good idea to keep up to speed on the judges' form scheduling orders. In their form orders, the judges set forth their preferences, and when those orders are entered in a case, they can override some of the local rules.

In the past, when the judges have updated their form scheduling orders, they have occasionally ordered that the updates to apply to pending cases. Sometimes, even absent such an order, counsel have been eager to apply the new procedures on their own.

(The last such change I recall was when judges started switching over to Judge Andrews' method of claim construction briefing, where the parties serve back-and-forth …

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Unlike in the Eastern District of Texas, Delaware Scheduling Orders Avoid Potential Rule 11 Pitfalls at the Pleadings Stage

Emily S. DiBenedetto, Feb. 19, 2025
Scheduling Order Sanctions

Parade of Horribles.jpg
The Looming Parade of Horribles, AI-Generated, displayed with permission

I’m partial to percussion and noticed that there was a gaping hole of staccato in the rising swell of the IPDE music videos, subtle though it may have been in the background of Andrew's singing and Nate’s interpretive dance performances. Leaving the snare drum at home, today I chime in only with the lonely voice of a wistful triangle to supplement this week’s stories with a tale from a faraway land—the Eastern District of Texas.

Why do we in Delaware care about this opinion? It gave me a fresh appreciation for the orderly composition of Delaware scheduling orders. It involved a problem that cannot arise in a District of Delaware …

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Time Is All We Have

Nathan R. Hoeschen, Dec. 10, 2024
Stipulation Scheduling Order

We lawyers move things around all the time. Some due date or another falls on a vacation, an expert gets sick, a bunch of files won't load -- a thousand different minor catastrophes can occur. In Delaware, the result is almost invariably a stipulation to move the relevant dates.

WHEREAS, on the first day the waters turned to blood;
WHEREAS, on the first day the waters turned to blood; AI-Generated, displayed with permission

Typically for little interim deadlines, the Court will grant the stipulation as a matter of course. Deadlines a little closer to trial are a bit trickier. Judge Connolly, for instance, notes in his form scheduling order that "Should the parties later stipulate or otherwise request to have the [SJ and Daubert] reply brief deadline extended, the parties …

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Patentee's Delay in Moving to Amend Infringement Contentions Costs Them the Opportunity to Add 40 Accused Products—Even Though Fact Discovery Has Not Ended

Andrew E. Russell, Nov. 1, 2024
Accused Products Stay Pending IPR

The apparent state of the patentee's case after the Court's decision.
The apparent state of the patentee's case after the Court's decision. Jason Mavrommatis, Unsplash

Before you get too excited, defendants, this case involved a scheduling order using Judge Connolly's form, which provides only a single round of infringement and invalidity contentions, and explicitly requires good cause to amend.

Most District of Delaware scheduling orders include two rounds of contentions (initial and final), with the second round typically coming around the close of fact discovery. It is unlikely to be as difficult to amend in cases like those.

Regardless, I thought this was an interesting result worthy of a post. In Cognipower LLC v. Fantasia Trading, LLC, C.A. No. 19-2293-JLH-SRF (D. Del.), the Court stayed the case …

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Changing the Court's Defaults in a Scheduling Order May Be Risky

Andrew E. Russell, Oct. 14, 2024
Scheduling Conference Scheduling Order

But it seems so pretty
AI-Generated, displayed with permission

Each of our judges in Delaware has one or more form scheduling orders that sets limits on things like the number of motions in limine (typically 3), pages limits for summary judgment and Daubert motions (typically 40/40/20 or 50/50/25), and discovery dispute procedures.

Here is a scenario I've seen a couple of times:

  • The parties agree to change the limits in the form scheduling order to give themselves more pages, more motions, etc.
  • The change is visually small and not particularly noticeable (e.g., "three" MILs becomes "five" MILs, "forty" pages becomes "eighty" pages, etc.).
  • The Court so-orders the undisputed proposed scheduling order.
  • When the time comes to actually file the extra MILs or extra-long briefs, …
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Judge Bryson Denies Stipulation That Sets Dispositive Motions Too Close to Trial

Andrew E. Russell, Sept. 24, 2024
Case Dispositive Motions Stipulation

Denied
AI-Generated, displayed with permission

It seems fairly well known that while parties can freely stipulate to most kinds of schedule adjustments in the District of Delaware, changing the dispositive motion deadline is a danger zone that might result in the denial of your stipulation—or worse, such as the loss of your trial date.

But people often do it anyway. Yesterday, visiting Judge Bryson denied a stipulation that would move the case dispositive motions deadline to April 25, 2025 for a trial starting July 14, 2025.

Assuming the parties use the briefing schedule under the local rules, the Court will not have a full set of papers until May 16, less than 2 months before the first day of trial. No …

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What's New in Judge Hall's Revised Form Scheduling Order for Patent Cases?

Andrew E. Russell, Feb. 5, 2024
PGR Scheduling Order

Scheduling Order

Last month, after her elevation to the bench as a district judge, Judge Hall issued a revised form scheduling order.

I think it's worth paying attention to what changes, even if the changes may not directly apply in your case, because it shows what the judges are focused on and thinking about.

Plus, it usually doesn't hurt to comply with a judge's newest procedures even if they are not required by the (outdated) scheduling order in your case.

So, what's new?

Stating the Meaning of "Plain and Ordinary Meaning"

Judge Hall adopted a set of additional requirements for joint claim construction briefs. Like all of our current judges, she uses Judge Andrews' procedure of a joint claim construction brief. But …

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D. Del. Court Rejects Attempt to Import N.Y. State Court Procedure Permitting Late Cross-Motions for Summary Judgment

Andrew E. Russell, Jan. 24, 2024
Summary Judgment Scheduling Order

The big apple: The home of the Statue of Liberty, the Empire State Building, and (apparently) precedent permitting late-served cross-motions for summary judgment.
The big apple: The home of the Statue of Liberty, the Empire State Building, and (apparently) precedent permitting late-served cross-motions for summary judgment. Michael Discenza, Unsplash

In Fundamental Innovation Systems International LLC v. Anker Innovations Ltd., C.A. No. 21-339-RGA (D. Del.), plaintiff moved for summary judgment of patent eligibility, and defendant filed an answering brief.

At the same time as its answering brief, however, defendant filed a late "cross-motion" for summary judgment, asking the Court to not only deny plaintiff's motion, but to grant summary judgment of ineligibility. Defendant devoted about 9 pages of its 40-answering brief to arguing against plaintiff's motion and in favor of its own affirmative "cross-motion" for a determination of ineligibility.

Plaintiff …

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Watch What You Agree to! Court Holds Plaintiff to Agreement in Scheduling Order That "Hypothetically Allows Defendant to Propose Millions of [Invalidity] Theories"

Andrew E. Russell, Jan. 19, 2024
Scheduling Order Case Narrowing

Watch out for what may be in that draft scheduling order...
Watch out for what may be in that draft scheduling order... AI Generated, displayed with permission

In International Business Machines Corporation v. Zynga Inc., C.A. No. 22-590-GBW (D. Del.), the parties agreed in the scheduling order to a rather vague set of case narrowing provisions:

On November 30, 2023, Plaintiff shall perform a first narrowing of the number of asserted claims. On December 7, 2023, Defendant shall perform a first narrowing of the number of asserted invalidity references.
. . . On February 28, 2024, Plaintiff shall perform a second narrowing of the number of asserted claims. On March 5, 2024, Defendant shall perform a second narrowing of the number of asserted invalidity …
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