A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: trial-procedure

353? Ridiculous.
Andrew E. Russell, CC BY 2.0

Judge Andrews gave some strong guidance about the contents of pretrial orders today. District of Delaware local rule 16.3 requires that pretrial orders include a lengthy list of materials, including a "statement of the issues of fact which any party contends remain to be litigated."

These are often disputed. Parties typically file a pretrial order that sets forth each parties' version of the issues of fact, sometimes with a joint section for any issues where the parties agree. (By the way, that's why it's best for the parties to agree on a schedule for pretrial disclosures in advance of the pretrial order—to avoid having to Frankenstein a pretrial order together on the day of …

Chalkboard Math
Roman Mager, Unsplash

By default, patent cases in Delaware are typically scheduled for a five-day jury trial in the initial scheduling order. Sometimes, however, it seems that parties don't give any further thought about what the actually means until they need to file a pretrial order much later in the case.

Delaware jury trials are strictly timed. Those who are less familiar with how jury trials typically go may expect that they'll have more time than they really will. A simple back-of-the-envelope calculation by someone who is not in-the-know might be:

40 hours per week / 2 sides = 20 hours per side

That would be wrong. The actual, practical number of hours per side for a five-day patent …

Somewhere between the filing of the pretrial order and the pretrial conference, Judge Stark typically issues an order resolving pretrial disputes and allocating trial time. These orders - while usually short - provide a wealth of insight into his trial practices and preferences, and (often) his views on substantive evidentiary issues. They also serve to remind litigants of longstanding trial management practices (including those codified in his form pretrial order).

On Friday, Judge Stark issued a 3-page pretrial memorandum order in a set of consolidated Hatch-Waxman ("ANDA") actions, Silvergate Pharmaceuticals, Inc. v. Bionpharma, Inc. et al., C.A. Nos. 18-1962, 19-1067, 19-678. The order contained decisions on sealing the courtroom during the bench trial, obviousness proofs, disclosure of exhibits to be used on cross examination, and others.