We've previously talked about how Chief Judge Connolly's new form orders split patent trials into phases, with willful infringement and damages tried only if there is a finding of infringement. We noted at the time that the new form order doesn't say in which phase invalidity goes—with infringement, or afterwards?
It looked like we got an answer late last month, when Chief Judge Connolly held a phased jury trial in Magnolia Medical Technologies, Inc. v. Kurin, Inc., C.A. No. 19-97-CFC-CJB (D. Del.). There, the Court split the trial into two phases, with infringement by itself and then invalidity and damages together.
In Magnolia, the jury found infringement, so the case proceeded to Phase 2, in which the jury found no invalidity and damages of $2.14m. According to the docket, the case also had a schedule that was a bit different than usual, including jury selection on the Friday before trial:
- Friday 7/22: Jury selection
- Monday 7/25: Phase I (infringement)
- Tuesday 7/26: Jury verdict (infringement)
- Wednesday 7/27: Phase II (invalidity, damages)
- Thursday 7/28: Jury verdict (invalidity, $2.4m damages)
Note that each phase had its own preliminary and final jury instructions.
So that answers it, right? Invalidity goes after infringement? Not necessarily!
At a hearing earlier this week, Chief Judge Connolly commented that the parties in Magnolia had not asked to put invalidity and infringement together, but that in future trials, the Court thinks it is most fair for invalidity to go with infringement because of the parties' motivations to read the claims broadly/narrowly for each. Volterra Semiconductor, LLC v. Monolithic Power Systems, C.A. No. 19-2240-CFC (D. Del. Aug. 2, 2022) (transcript).
The Court also commented that it is trying to pare down jury instructions, and indicated that the Magnolia instructions are a good example. So take note if you have a Judge Connolly trial coming up! These instructions are attached below.
Finally, the Court also commented—at another hearing last week—that jury selection on the Friday before trial works well (most often trial would otherwise start, and jury selection be held, on Monday). AMO Development, LLC v. Alcon Vision, LLC, C.A. No. 20-842-CFC (D. Del. Aug. 3, 2022) (transcript). That may be Chief Judge Connolly's preference for trials going forward as well.
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