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 out that the answer is yes!
Interestingly, the form order does not state where invalidity goes. In the trial we talked about back in February, the Court ordered the parties to first try infringement by itself, then invalidity, willfulness and damages together in a second phase of trial. We'll have to see if that is the intent here, or if the Court may have another arrangement in mind.
Parties Less Likely to Shoot Themselves in the Foot
Chief Judge Connolly sets forth a policy on his website where, if the parties stipulate to move their dispositive motion deadline, they will lose their trial date:
Important Note concerning Summary Judgment Motions
Should the parties stipulate or otherwise request to have their dispositive motion deadline extended, and a trial date is currently set on the court's calendar in the case, the parties will lose their trial date upon the court's granting the extension. No new trial date will be given until the dispositive motion(s) have been decided.
I know some plaintiffs have blundered into this accidentally, losing their trial date for an extension of briefing that they could probably have done without. This was definitely a bit of a memory test for Delaware counsel.
The new form scheduling orders add this policy into the scheduling order itself, making it much less likely that parties will shoot themselves in the foot by extending this deadline without realizing what would happen. It also clarifies that the policy only applies when the reply brief deadline is extended (which was already noticeable if you follow the dockets, but it is good to know for sure).
Markman Tweaks: Don't Touch that Deadline...
The new scheduling orders give more guidance about the timing of certain deadlines, including the joint brief and the pre-hearing meet-and-confer. They also make clear that parties can lose their Markman hearing date if they stipulate to change the deadline of the joint claim construction brief:
No later than [four weeks before the claim construction hearing], the parties shall file a Joint Claim Construction Brief. (Should the parties later stipulate or otherwise request to have this deadline extended, the parties will presumptively lose their claim construction hearing date upon the Court's granting the extension.)
Case Dispositive Motion Ranking Procedure Incorporated & Expanded to Include Daubert Motions
About a year ago, Judge Connolly issued a standing order with a new procedure to deter meritless summary judgment motions. His new scheduling orders succinctly incorporate that procedure:
(d) Ranking of Summary Judgment Motions. A party that files more than one summary judgment motion shall number each motion to make clear the order in which the party wishes the Court to consider the motions in question. The first motion the party wishes the Court to consider shall be designated #1, the second motion shall be designated #2, and so on. The Court will review the party's summary judgment motions in the order designated by the party. If the Court decides to deny a motion filed by the party, barring exceptional reasons determined sua sponte by the Court, the Court will not review any further summary judgment motions filed by the party.
One question that would come up quite a bit with the old procedure was whether parties need to rank Daubert motions as well, given that they are filed on the same deadline (some parties did, and some did not). The new orders specifically include Daubert motions:
(e) Ranking of Daubert Motions. A party that files more than one Daubert motion shall number each motion to make clear the order in which the party wishes the Court to consider the motions in question. The first motion the party wishes the Court to consider shall be designated #1, the second motion shall be designated #2, and so on. The Court will review the party's Daubert motions in the order designated by the party. If the Court decides to deny a motion filed by the party, barring exceptional reasons determined sua sponte by the Court, the Court will not review any further Daubert motions filed by the party.
The orders include an interesting twist—losing a Daubert motion puts you at risk of losing time at trial, if you don't cross examine the expert on the point you raised:
If the Court denies a Daubert motion and the party that brought the motion does not cross examine the expert witness at trial about the matters raised in the Daubert motion, the Court will reduce by an appropriate amount the time allotted to that party at trial.
In other words, if the point you raise isn't even worthy of the time it would take to present at trial, you may be risking precious trial time by raising it at the Daubert stage.
Colored Brief Covers
The new scheduling orders also include a provision for colored brief covers:
(b) Colors of Front Covers. The covers of briefs filed in connection with all motions except for motions in limine included in a pretrial order shall be as follows:
(1) Opening brief - Blue
(2) Answering brief- Red
(3) Reply brief - Gray
The colors mirrors those used at the Third Circuit Court of Appeals. I foresee a few stressed-out paralegals in the next couple of weeks as Delaware counsel adapts to this requirement, which I don't think any of the judges have instituted before.
Other Miscellaneous Changes
Smaller changes include:
- The language about ADR referrals is removed (that makes sense)
- Judge Connolly adds the convenient chart of dates used by some of the other judges
- Trial days start at 8:30am instead of 9:00am
- Other wording tweaks throughout
Note that these revised scheduling orders only apply to non-Hatch Waxman patent cases, so we may also see revised versions for Hatch Waxman (ANDA) cases and non-patent cases down the line.
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