IN EASTERN DISTRICT (MARKMAN HEARING ) TRIAL DATE EFFECTIVELY IMMOVABLE
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PORTION OF ARTICLE Patent Litigation on the
Rocket Docket After
Markman v.Westview
Instruments, Inc.
by Dana D. McDaniel a partner in the litigation
section at Williams Mullen, where he concentrates
his practice on intellectual property and
technology disputes.
It would be difficult to overstate
the impact Markman has had on
patent infringement litigation.
the impact Markman has had on
patent infringement litigation.
In recent years, the United States District Court for the Eastern
District of Virginia has experienced an “explosion of intellectual
property cases,” including patent cases. The dramatic rise in
the number of intellectual property cases filed here reflects an
increased awareness of the value of intellectual property assets
and, apparently, a greater willingness on the part of intellectual
property owners to litigate to enforce those rights. At the same
time, the increase in patent cases in the Eastern District is no
doubt also driven by the court’s proximity to the Patent and
Trademark Office and the nation’s capital, as well as its national
reputation as the home of the “rocket docket.” On the rocket
docket, typically, “all cases, including patent and other intellectual
property cases, proceed from birth to death, start to finish, in
6–8 months.” Many plaintiffs, and especially patentees, believe
that this “rapid disposition . . . would likely be to [their] advantage.”
Consequently, the Eastern District has become a preferred
forum for patent infringement plaintiffs.
Although patent infringement litigators may disagree whether a
patent case can be fully and fairly litigated in the timeframe
allowed on the rocket docket, patent cases are generally held to
the same trial schedule as other civil cases. While the pace of case
disposition in the Eastern District has always “require[d] discipline,
preparation and skill on the part of the lawyers involved,”
especially in complex patent cases, the Supreme Court’s ruling in
Markman v. Westview Instruments, Inc. (Markman II), has made
District of Virginia has experienced an “explosion of intellectual
property cases,” including patent cases. The dramatic rise in
the number of intellectual property cases filed here reflects an
increased awareness of the value of intellectual property assets
and, apparently, a greater willingness on the part of intellectual
property owners to litigate to enforce those rights. At the same
time, the increase in patent cases in the Eastern District is no
doubt also driven by the court’s proximity to the Patent and
Trademark Office and the nation’s capital, as well as its national
reputation as the home of the “rocket docket.” On the rocket
docket, typically, “all cases, including patent and other intellectual
property cases, proceed from birth to death, start to finish, in
6–8 months.” Many plaintiffs, and especially patentees, believe
that this “rapid disposition . . . would likely be to [their] advantage.”
Consequently, the Eastern District has become a preferred
forum for patent infringement plaintiffs.
Although patent infringement litigators may disagree whether a
patent case can be fully and fairly litigated in the timeframe
allowed on the rocket docket, patent cases are generally held to
the same trial schedule as other civil cases. While the pace of case
disposition in the Eastern District has always “require[d] discipline,
preparation and skill on the part of the lawyers involved,”
especially in complex patent cases, the Supreme Court’s ruling in
Markman v. Westview Instruments, Inc. (Markman II), has made
litigating patent cases in the Eastern District even more demanding.
In Markman II, the Supreme Court affirmed the Federal
Circuit’s ruling that patent claim construction is a matter exclusively
for the trial judge, not the jury. Before Markman, “[patent]
claim interpretation issues were typically left to the jury on the
basis of the parties’ conflicting expert testimony.” Judge Timothy
S. Ellis, III, of the Alexandria Division, has described Markman
II as “a watershed event in patent litigation[.]”Markman has
substantially affected the course of patent infringement litigation,
adding to the pretrial process a new, and potentially dispositive,
step that requires briefs with supporting record evidence, affidavits
and legal authority, oral argument, and in some cases, an
evidentiary hearing.
In Markman II, the Supreme Court affirmed the Federal
Circuit’s ruling that patent claim construction is a matter exclusively
for the trial judge, not the jury. Before Markman, “[patent]
claim interpretation issues were typically left to the jury on the
basis of the parties’ conflicting expert testimony.” Judge Timothy
S. Ellis, III, of the Alexandria Division, has described Markman
II as “a watershed event in patent litigation[.]”Markman has
substantially affected the course of patent infringement litigation,
adding to the pretrial process a new, and potentially dispositive,
step that requires briefs with supporting record evidence, affidavits
and legal authority, oral argument, and in some cases, an
evidentiary hearing.
Although Markman practice creates new demands on patent trial
counsel, it also encourages counsel to identify claim construction
issues early in the case and to incorporate the Markman process
into the discovery plan and pretrial schedule. The Rule 26(f)
conference, a relatively new development in the Eastern District
in which the parties are required to “confer to consider the
nature and basis of their claims and defenses . . . and develop a
proposed discovery plan,” provides an excellent opportunity
for counsel to identify potential claim construction disputes and
incorporate the Markman process into a comprehensive discovery
plan and pretrial schedule. Counsel should be prepared to
discuss with the court at the initial scheduling conference the
need for and timing of a Markman hearing. In scheduling the
Markman hearing, counsel in the Eastern District must be mindful
that the trial date is effectively immovable, and they must
allow sufficient time to prepare for and conduct the Markman
hearing, brief and argue dispositive motions, and complete the
myriad other pretrial tasks. It is, therefore, in all parties’ interest
to identify claim construction issues early and provide for timely
claim construction in the pretrial schedule.
counsel, it also encourages counsel to identify claim construction
issues early in the case and to incorporate the Markman process
into the discovery plan and pretrial schedule. The Rule 26(f)
conference, a relatively new development in the Eastern District
in which the parties are required to “confer to consider the
nature and basis of their claims and defenses . . . and develop a
proposed discovery plan,” provides an excellent opportunity
for counsel to identify potential claim construction disputes and
incorporate the Markman process into a comprehensive discovery
plan and pretrial schedule. Counsel should be prepared to
discuss with the court at the initial scheduling conference the
need for and timing of a Markman hearing. In scheduling the
Markman hearing, counsel in the Eastern District must be mindful
that the trial date is effectively immovable, and they must
allow sufficient time to prepare for and conduct the Markman
hearing, brief and argue dispositive motions, and complete the
myriad other pretrial tasks. It is, therefore, in all parties’ interest
to identify claim construction issues early and provide for timely
claim construction in the pretrial schedule.
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