As we've discussed, starting last decade some of our judges have dealt with the influx of § 101 motions by setting "§ 101 motion days" and addressing multiple § 101 motions in multiple cases at the same time and in the same oral argument, with attorneys for each party required to attend the full argument.
These days seem to have been a success, because today Judge Burke issued an order applying the same procedure to a new type of motion—motions to dismiss or strike inequitable conduct allegations:
WHEREAS, the Court has received numerous motions challenging the accused infringer’s counterclaims and/or affirmative defenses relating to inequitable conduct (hereafter, “inequitable conduct Motions”);
WHEREAS, the Court believes that certain efficiencies in resolving the inequitable conduct Motions are attainable by hearing argument on multiple such motions at essentially the same time;
WHEREAS, the Court seeks to use its limited resources in a manner that may promote the “just, speedy, and inexpensive determination of every action and proceeding[,]” Fed. R. Civ. P. 1.;
NOW THEREFORE, IT IS HEREBY ORDERED that:
1. The Court will hear argument on the following inequitable conduct Motions at a combined hearing on June 6, 2023, beginning at 9:30 a.m.: [listing three unrelated cases]
* * *
4. Each party in the above-captioned actions must be represented by at least one attorney for the entire duration of the hearing. The Court will subsequently advise the parties of how much time each side/case will have for argument and the order in which each inequitable conduct Motion will be heard.
This is the first time I've seen any of our judges apply this procedure outside of the § 101 motion context, and a quick search doesn't turn up any previous instances. We'll have to see if the Court applies it to more things as time goes on.
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