What is Patent Litigation Scheduling? Episode 115

Quick Recap of Litigation Episodes

It’s been a little while since I’ve gone through the chronology of patent litigation. I started the topic and then jumped to other subjects for a bit. Let me briefly cover what I’ve discussed so far.

Patent litigation is when you bring a case to court because you believe someone has infringed your patent. I gave an overview in Episode 103. I then discussed the very first stages, which typically involve sending or receiving a cease and desist letter. Those were Episodes 104 and 105.

I then explained what goes into a patent infringement complaint—this is the first formal document you file with the court to begin the litigation process. I talked about answering a complaint in Episode 109. The last litigation topic I covered was shifting the case back to the Patent Office—that’s when you want the Patent Office to decide the validity of the patent before the trial court makes any determination. If the Patent Office finds the patent invalid, then the court case essentially ends.

What Is Patent Litigation Scheduling?

In this episode, I’m going over the first real thing that the judge is going to do after the defendant files an answer to the complaint—and that is scheduling.

We don’t want the case to go on for 10 years. There have to be deadlines for things to happen, and that’s what scheduling is. The judge sets those deadlines.

There’s no one-size-fits-all for scheduling—different courts will have different rules about what needs to happen and when. The judge will issue a scheduling order with due dates for key events in the case. I’m just going to go over some of the typical items that appear in a litigation schedule.

Witness Disclosures

If you’re going to have witnesses—and you will—you need to exchange your list of witnesses with opposing counsel by a certain date. You’re not supposed to have any surprises at trial, so whoever you plan to call as a witness must be disclosed in advance.

Discovery Cutoff Dates

You’ll have several deadlines called discovery cutoffs. I’ll cover discovery more in-depth in a later episode, but discovery is the process where each side tries to gather information from the other.

Claim Construction Deadlines

You’ll also have deadlines for claim construction. I’ve talked about claim construction before—this is when you define what the words in the patent claims mean.

For example, let’s say your invention includes a “tunnel.” But the allegedly infringing product has a groove that’s open on one side. Is that a tunnel? That’s likely something you’ll fight about.

You’ll have to submit a claim construction document explaining what your terms mean. The judge will want to see each party’s interpretation and responses to the opposing party’s definitions, and there will be specific deadlines for all of that.

Meet and Confer Deadline

There’s also a deadline for a meet and confer. That’s when the judge requires both parties to communicate—either by phone or in person—to try to hash out certain issues before the court gets involved.

Markman Hearing Date

A Markman hearing, which is a hearing for claim construction, will also be scheduled. I discussed this in a previous episode.

Motion Deadlines

There will be deadlines for filing motions. Motions are when you ask the judge to rule on a particular issue before trial.

For example, you might file a motion to exclude one of the opposing side’s witnesses. Or you might file a motion for summary judgment, asking the judge to throw out the case because the plaintiff didn’t submit sufficient evidence of infringement. There are many types of motions, and the scheduling order will include deadlines for filing and responding to them.

Depositions and Discovery Deadlines

You’ll also have deadlines for when all depositions must be completed and when discovery must end.

Mediation Requirement

There might be a scheduled date for mediation—a required attempt to settle the case before it goes to trial. Some courts won’t proceed with trial until mediation has occurred.

Trial and Pre-Trial Deadlines

The schedule will include a trial date, as well as a date for when all pre-trial materials (exhibits, witness lists, trial briefs, etc.) must be submitted to the court.

Adjusting the Schedule

You can request changes to deadlines, and that happens often—things come up. Sometimes the judge will approve the change; sometimes they won’t.

Judges may also schedule a status conference where all parties meet to discuss how the case is progressing and whether things are moving forward as planned.

Importance of Meeting Deadlines

These scheduling orders exist to keep everything on track. If you miss a deadline, the judge might be lenient—but they might not. If you fail to designate a witness by the deadline, you may be barred from calling that witness at trial.

So it’s crucial to stay on top of the scheduling order. Know what’s due and when. If you miss something, the other side will definitely notice and may ask the judge to sanction you, or bar you from submitting certain evidence or arguments. That can have a serious impact on your case.

I’m Adam Diament, and until next time, keep on inventing.