May 30, 2014 Articles

Delaware's Judge Stark Outlines New Patent Case Management Practices

"The times they are a-changin.'"

By Chad S.C. Stover

The Hon. Leonard P. Stark of the District of Delaware, who will soon be the district's chief judge, has announced that he is changing the way he manages patent cases. He outlined the coming changes at a May 13th CLE presentation sponsored by the Delaware Chapter of the Federal Bar Association. 

Chief Judge Rader Sets the Stage

The CLE presentation began with Federal Circuit Court of Appeals Chief Judge Rader singing Bob Dylan's "The Times They Are A-Changin'" with new lyrics emphasizing needed changes in U.S. patent litigation. After his musical interlude, Judge Rader went on to talk about the unreasonably high cost of patent litigation in the United States as opposed to other countries—which is largely the result of the broad discovery allowed in the United States—and the difficulties in attempting to categorize and curb "patent trolls" through legislation.  He believes that district court judges are in the best position to recognize and stop abusive litigation practices.  As to out-of-control litigation costs, Judge Rader proposed limiting the amount of discovery because 90 percent of the relevant documents are known to the parties before discovery even begins. He said he "believes in a little injustice," meaning that ignoring the final 10 percent of the documents would have only a de minimus effect on outcomes in exchange for a dramatic increase in efficiency. 

The District of Delaware's Patent Study Group

With the backdrop of Judge Rader's comments, Judge Stark took the stage and described the crowded District of Delaware docket, the district's Patent Study Group, and his plans for more efficiently handling his personal docket of more than 500 active patent cases and 400 pending motions. Delaware currently has 1478 patent cases, or 370 patent cases per judge, while the nationwide average is 10 patent cases per judge. In 2014 alone, Judge Stark projects plaintiffs will file about 1,100 patent cases in Delaware. 

In an effort to better manage their dockets and discern the best practices in patent case management, Judge Stark and Delaware's Judge Sue Robinson formed a Patent Study Group.  During more than 15 hours of meetings, they met with more than 120 attorneys from over 25 law firms and in-house legal departments across the country.  They heard that Delaware was doing a good job handling its docket of patent cases but could improve in certain specific areas.  First, it was recommended that the judges devote more resources earlier in their cases, which could help identify weaker cases and end them early.  Second, it was important to set a schedule including a trial date at the beginning of the case and keep it.  And third, they heard about the importance of issuing decisions quickly, even if those decisions are not long, written opinions.

In response to what Judge Robinson heard during these meetings, she issued a new, much-discussed model scheduling order earlier this year. She made many changes to her standard practices, including earlier Markman claim construction hearings (and a goal of issuing claim construction opinions within 30 days of the hearings), no longer presumptively bifurcating liability from damages, and enacting an 8 p.m. Eastern time filing deadline for filings due on a certain day (sorry West Coast practitioners). 

Judge Stark's New Practices

Judge Stark is now following suit with changes of his own.  He has not yet issued a new form scheduling order, but he expects to this summer. Many of Judge Stark's changes will be similar to Judge Robinson's. Judge Stark outlined the following changes:

• He will hold early case management conferences in chambers. Before these conferences, the parties will be required to meet, discuss items on a checklist prepared by the court, and certify that this discussion has taken place. The checklist items will be discussed at the case management conference.

• Case management conferences will be set after any defendant files a motion or an answer. Judge Stark will no longer wait until all defendants have responded to the complaint to set a scheduling conference. This implies that a motion to dismiss will not delay the start of a patent case.

• Each case will be treated individually for purposes of setting scheduling conferences.  Related cases involving the same patent(s) will not necessarily proceed on the same track.

• He will presumptively set a trial date in the initial case scheduling order.

• Motions to transfer, stay, or dismiss will be referred to a magistrate judge.

• He eventually may refer case management conferences and scheduling to a magistrate judge as well.

• He will be less resistant to early Markman hearings, especially where construction of a small number of terms could be case dispositive.

• Motions to amend and strike will be handled the same way as discovery disputes—with short letter briefs preceding a teleconference.

• He will require Delaware and lead counsel (if different) for both sides to certify they have spoken before allowing a discovery dispute teleconference, and counsel must provide a joint agenda for the conference.

• He will set an aspirational goal of issuing a Markman opinion within 60 days of the claim construction hearing, or he will let the parties know he will not meet this 60-day goal.

• He will set page limits on all motions for summary judgment, Daubert motions, and post-trial motions.

• He will make an effort to provide his post-trial inclinations (e.g., whether he might disturb a jury verdict) shortly after the end of trial.

Both Judge Robinson and Judge Stark plan to monitor the efficacy of their new procedures and modify them as needed.  Interestingly, Delaware's other Article III judges, Chief Judge Gregory Sleet and Judge Richard Andrews, have not indicated that their procedures will change.

Between recent Supreme Court decisions on attorney fees awards and proposed legislation to thwart patent trolls, curbing patent litigation abuse is an unquestionably hot topic. Can district court judges "end abuse through proper discipline" as Chief Judge Rader suggests?  Or is legislative action required?  New patent case management procedures from two of the top patent judges in the country—Judge Robinson and Judge Stark—will try to keep justice in the hands of judges.   

Keywords: litigation, intellectual property, patent cases management, District of Delaware, Judge Stark, Judge Robinson, U.S. patent litigation, trolls

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