Judge Robinson Issues New Form Scheduling Order as a Result of Feedback from the Patent Study Group

March 26, 2014

Publication| Intellectual Property

On Monday, March 24, Judge Robinson issued two new form Orders: (i) an Order directing the parties to confer on certain matters prior to a Scheduling Conference and (ii) a form Scheduling Order. The new form Scheduling Order is the result of feedback received during interviews conducted for the Court’s Patent Study Group. When the Patent Study Group was announced in December, the Court indicated that “The size of Delaware’s patent docket, and the experience of the District’s bench and bar, create a unique opportunity for identifying potential “best practices” for the management of these complex cases.”

Judge Robinson has indicated that the case management changes in the new form Scheduling Order will apply to cases that have had a Scheduling Order entered in the past six months and to all non-ANDA cases assigned to Her Honor going forward. The major changes to the form Scheduling Order include:

  • Magistrate Judge: All discovery disputes and the overall management of discovery are now referred to the Magistrate Judge. (Section 1(b)).
  • The Court now requires that the parties list information identified at the Rule 26(f) conference that will need to be exchanged, along with deadlines to do so. (Section 1(c)(1)).
  • Damages: In connection with the initial disclosures, a plaintiff must identify its “damages model” and defendants must thereafter produce sales figures (Section 1(c)(2)-(3)). In addition, Judge Robinson will no longer bifurcate damages from liability.
  • Status Conference: After initial disclosures and before claim charts, the Magistrate Judge is to hold a status conference to ensure the exchanges “have been meaningful.” (Section 1(c)(4)).
  • Depositions: The Magistrate Judge will be responsible for addressing deposition issues, including the number of depositions (prior to the completion of document production). (Section 1(e)(2)).
  • The parties are now required to include deadlines for final infringement contentions and final invalidity contentions. (Section 1(f)(2)-(3)). As with her prior form Scheduling Order, “[t]he adequacy of all such contentions shall be judged by the level of detail each party provides…”
  • The parties must also include a date by which the parties are to finally supplement the identification of all accused products and of all invalidity references.
  • Claim Construction: Judge Robinson has changed her prior practice of deciding claim construction only at the end of the case in connection with summary judgment. The Court will now construe the disputed claim terms prior to expert discovery and has inserted a deadline by which the Court shall issues its decision.  Thereafter, the parties will have a status conference with the Court to discuss the scope of the case.
  • Daubert motions are no longer permitted unless discussed with the Court at an in-person status conference.
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