A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Scheduling Order

Percentages
Artem Beliaikin, Unsplash

This is a way of drafting scheduling order deadlines I haven't seen before. In Novarad Corp. v. Medivis, Inc., C.A. No. 21-1447-VAC-MPT (D. Del.), the parties initially agreed to a scheduling order that included a deadline for document production to be "substantially complete."

Many (maybe all) of the judges' form scheduling orders include a deadline for substantial completion of document production. Parties generally understand the substantial completion deadline to mean the production of enough documents that fact depositions can begin.

Exactly how many documents that is can be an occasional source of disagreement. There is not a lot of well-known precedent about exactly what proportion of documents must be produced before the substantial …

Certainty > Ambiguity
Certainty > Ambiguity Jon Tyson, Unsplash

Confusion over a deadline can lead to missed deadlines. But when parties draft the initial scheduling order in an action, there are at least two common ways that ambiguities may arise, both of which seem easy to eliminate.

“# Days After the Scheduling Conference” is Ambiguous If No Scheduling Conference Takes Place

The first common source of ambiguity in recent scheduling orders is dates scheduled to occur a set number of days after the scheduling conference.

Why is that a problem? Well, we have noticed a growing trend in which the Court issues Scheduling Orders without a Scheduling Conference. Instead, the Court may adjust any proposed dates by crossing them out on the proposed order, writing in the Court’s preferred date(s), and issuing the adjusted order on the docket. Thus, the parties may have a date set “30 days after the Scheduling Conference”—but there was no scheduling conference.

When that happens, the correct result is unclear. Should the deadline be interpreted to mean 30 days from when the Rule 16 Conference was scheduled to occur? Or 30 days from the Scheduling Order? Or should ...

setyaki-irham-tfdff8Poebw-unsplash
Setyaki Irham, Unsplash

I was talking to my fellow blogger Andrew the other day, when we had the following exchange:

Andrew: Greetings treasured friend and colleague! Have you noticed that Judge Andrews hasn't been requiring parties to submit scheduling orders whilst motions to dismiss are pending?

Me: Truly?

Andrew: Indubitably, I would not jest on such a matter! I have, in fact, just confirmed it by reviewing his 10 most recent orders on motions to dismiss with my own eyes.

Me: Well I cannot gainsay such thorough research. But what of the others? Do Judges Noreika and Connolly decide motions to dismiss before requiring the parties to submit a proposed schedule?

Andrew: I'm certain I don't know, but certainly …

Silly dog with googly eyes
Jane Almon, Unsplash

Kind of a funny order from Judge Noreika last week:

ORAL ORDER Setting Telephonic Scheduling Conference - The Court has reviewed the parties' proposed scheduling order and is disappointed that the parties have not been able to come to agreement on some of the disputes, which at first blush seem silly . . .

Eos Positioning Systems, Inc. v. ProStar Geocorp, Inc., C.A. No. 22-201-MN, D.I. 27 (D. Del.).

What were the silly disputes, you ask? Here they are, according to the letter filed with the draft scheduling order (D.I. 26-1):

  • Whether to include "to the extent any exist" after "[defendant] shall produce sales figures for the accused product(s).”
  • Whether the case is …

Do Not Enter Wrong Way
Tim Mossholder, Unsplash

Judge Andrews on Friday denied a fairly typical stipulation extending time for the briefing on a motion to dismiss:

ORAL ORDER: There is a pending motion of a routine nature. Each side is represented by multiple attorneys, at least some of whom on both sides are known to me to be more than competent. Summer schedules and other professional obligations are not a reason to add more than two months to the briefing schedule for this motion. The stipulation (D.I. 15 ) is DENIED. Ordered by Judge Richard G. Andrews on 6/3/2022. (nms) (Entered: 06/03/2022)

Robocast, Inc. v. Netflix, Inc., C.A. No. 22-305-RGA, D.I. 16 (D. Del. June 3, 2022).

I've noticed two similar orders lately as well, denying early-case extensions or stays and citing Federal Rule of Civil Procedure 16(b)(2), both from Chief Magistrate Judge Thynge. First, with regard to a stipulation to extend time to submit a scheduling order:

ORAL ORDER re 18 STIPULATION TO EXTEND TIME to submit a scheduling order to 6/1/2022 filed by IP Power Holdings Limited: . . . By the time of the Rule 16 conference scheduled for 6/6/2022, this matter will have been pending for ...

Delaware Memorial Bridge
Chintan Jani, Unsplash

Observant readers will have noticed that the new scheduling orders Chief Judge Connolly unveiled last week were specifically for non-Hatch-Waxman cases, and perhaps deduced that further orders for ANDA cases would be forthcoming. Well, the wait is over.

The new Hatch-Waxman case order, released yesterday, contains many of the same updates as the orders from last week, including a procedure for ranking Daubert motions, the tweaks to claim construction procedures, and the requirement for colored covers on courtesy copies. All to be expected given the changes last week.

Early Case Narrowing

The big change was that the new scheduling order includes a staged procedure for narrowing asserted claims and prior art. The first such stage begins just 7 days after the scheduling conference:

No later than seven days after the date of this Order, Plaintiff(s) shall serve Defendant(s) with a "Preliminary Disclosure of Asserted Claims" that lists each claim of each patent alleged to be infringed by Defendant(s), including for each claim the applicable statutory subsections of 35 U.S.C. § 271 asserted. Unless otherwise agreed to by the parties, Plaintiff(s) may assert no more than ...

Order
Brett Jordan, Unsplash

Yesterday, Chief Judge Connolly issued new form scheduling orders for non-Hatch Waxman patent cases.

As always, they are worth reviewing in full, but here are some of the highlights.

Phased Trials

First and foremost, in cases where infringement is alleged, the new form scheduling order defaults to a phased trial with infringement first:

26. Willfulness and Damages. Unless otherwise agreed to by the parties and the Court, the trial will be phased such that the issues of willful infringement and damages will be tried only if there is a finding of infringement.

We noted back in February that Judge Connolly had done this in one trial, and we wondered if it might become a trend. Turns …

Form Scheduling Order
The Honorable Maryellen Noreika

Judge Noreika updated her form scheduling order yesterday. Here are the changes:

  • Separate deadlines for fact and expert discovery cut offs. Judge Noreika's old form orders, and several other judges' form scheduling orders, set a cut off date for "all" discovery and a deadline for substantial document production. But parties often also set a separate deadline for fact discovery, so that there is a clear delineation for when fact depositions and any remaining document production need to end before expert reports occur. This resolves that issue.
  • Joint claim chart changes. Intrinsic evidence must now be submitted in an appendix rather than with the joint claim chart. This may help with the common issue that …