Wednesday, April 08, 2009

ND Illinois One Step Closer To Adopting Patent Rules

The judges of the Northern District of Illinois have issued for public comment proposed local rules to guide the pretrial procedures on patent cases. The proposed local patent rules were drafted by a committee of experienced lawyers, who are affiliated with the Intellectual Property Law Association of Chicago (IPLAC), and four district judges.

A copy of the proposed rules may be downloaded here (link).

The proposed rules are modeled after the same rules used in the Eastern District of Texas and the Northern District of Califormia regarding infringement, noninfringement and invalidity contentions. However, the claim construction process is different: claims are construed at the end of fact discovery, where the accused infringer gets to file an opening claim construction brief, followed by a response brief by patentee, followed by a reply brief by the accused infringer.

David Donoghue over at the Chicago IP Litigation Blog has a great outline of the timelines and procedures dictated by the Patent Rules, and I have taken the liberty of reproducing David's summary below:

  • standard protective order in place from the beginning of the case, unless and until it is modified, to avoid discovery delays being blamed upon entry of a protective order;

  • Automatic document production requirements of plaintiff when initial disclosures are served and of defendant when initial noninfringement and invalidity contentions are served;

  • Plaintiff serves initial infringement contentions two weeks after initial disclosures and defendant respond with initial noninfringement and invalidity contentions two weeks after that, followed two weeks later by plaintiff's response to the invalidity contentions;

  • Plaintiff files final infringement contentions twenty one weeks after its initial contentions and defendant responds four weeks later with final noninfringement, invalidity and unenforceability contentions (after the final contentions, leave of Court is required for any amendments);

  • No party can seek a stay pending reexam after serving its final contentions;

  • The claim construction process begins two weeks after defendant's final invalidity contentions are served;

  • Defendant files an opening claim construction brief along with a joint appendix including the patents in suit and their prosecution histories consecutively paginated, plaintiff then files a responsive brief within four weeks, and defendant has two weeks to file a reply;

  • Fact discovery closes forty two days after the claim construction rulings, which triggers expert discovery followed by a dispositive motion deadline.

The Patent Rules are scheduled such that a patent trial should occur within two years of serving the complaint. Assuming that schedule is enforced, it would result in a significant speeding up of, at least, the larger patent cases in the Northern District.

Anyone wishing to comment on the proposed rules may do so via e-mail to

ilnd_localrules_comments@ilnd.uscourts.gov

or by submitting written comments to

Michael Dobbins, Clerk of Court,

219 S. Dearborn Street, Room 2050,

Chicago, IL 60604.

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