Re: EDIG v. CO 19 Markman Date 1/28/11
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Message: EDIG v. CO 19 Markman Date 1/28/11
Dean per this article that portion of it has already posted lead counsel has difficult
task when he is dealing with multi defendants cases.
One of the most important issues in a patent infringement case is the proper interpretation of various claim terms. Differences in the defendants’ products often leads to the need by different defendants for different claim interpretations to be given higher priority. In many cases involving multiple defendants, the court wants to avoid receiving separate briefs from each of the defendants. In such cases, courts often limit the number of pages that defendants may submit jointly, obligating the defendants to cooperate in filing a single Markman brief. As a result, the parties have to work together to decide which terms are discussed first in the brief and are given greater treatment in the brief. Where page limits are an issue, getting sufficient space to have an issue treated with the same level of treatment that would be provided in a single defendant case can be one of the most challenging issues for a defendant.
In addition, if a court holds a Markman hearing, it is likely to set a time limit on the length of the hearing. Again, order of presentment at the hearing and time allocation amongst defendants is another issue that the defendants need to address. If one claim interpretation issue affects all defendants, it is likely to be the primary issue presented to the court in terms of pages
In addition, if a court holds a Markman hearing, it is likely to set a time limit on the length of the hearing. Again, order of presentment at the hearing and time allocation amongst defendants is another issue that the defendants need to address. If one claim interpretation issue affects all defendants, it is likely to be the primary issue presented to the court in terms of pages
in the briefing and allocation of time at the hearing. Issues that affect only one defendant, while important to that defendant, invariably will be found later in Markman briefing and address later in a Markman hearing. That issue will receive less treatment than it may have received if the defendant were the only defendant in the litigation.
Many courts in multi-defendant cases set discovery limitations on various issues in the case. Courts may limit the number of interrogatories, the total amount of deposition time, and the length of time defendants jointly may depose certain individuals, including the inventors and plaintiff’s experts. A plaintiff may seek other discovery limitations in an attempt to avoid having the defendants “gang up” on the plaintiff.
For example, in a lawsuit by a patentee asserting infringement against five defendants, each defendant ordinarily might want to depose the inventor(s). Under the Federal Rules of Civil Procedure, each defendant ordinarily is entitled to a seven-hour deposition of each inventor. Supposing there are three inventors in the case, if each defendant used all of the available time permitted under the Federal Rules of Civil Procedure, it could take 21 hours for a single defendant to depose the inventors. If each of the five defendants took that time, inventor depositions alone would take up to 105 hours. Further, if each of the five defendants took seven hours to depose every witness in the case, the number of deposition hours could mushroom uncontrollably.
As a result, it is very common in multi-defendant cases for the court to set some limitation on the number of total hours of deposition, either for each defendant group or for all defendants collectively, or a combination thereof. For example, limitations may be set related to the number of hours each inventor may be required to sit for deposition. Instead of requiring each inventor to sit for seven hours of deposition for each of the five defendants, a compromise may be negotiated such that each inventor only sits for a smaller number of hours.
Such limitations obviously restrict the amount of time each defendant has to pursue different avenues of discovery. This is particularly true when the amount of time allotted for depositions is imposed on the defendants as a group, rather than individually. Defendants might be limited in the number of deposition hours they can expend on issues that are individual to them or to a subset of the defendants. As a result, their ability to fully pursue all of the discovery they normally may fully pursue may be limited.
These kinds of restrictions on discovery in multi-defendant lawsuits require defendants to clearly prioritize the issues that are important to them and push the defendant group to address those issues. As a result, issues that ordinarily may have been pursued may have to take a backseat so that all defendants have an opportunity to pursue key issues important to them.
For example, in a lawsuit by a patentee asserting infringement against five defendants, each defendant ordinarily might want to depose the inventor(s). Under the Federal Rules of Civil Procedure, each defendant ordinarily is entitled to a seven-hour deposition of each inventor. Supposing there are three inventors in the case, if each defendant used all of the available time permitted under the Federal Rules of Civil Procedure, it could take 21 hours for a single defendant to depose the inventors. If each of the five defendants took that time, inventor depositions alone would take up to 105 hours. Further, if each of the five defendants took seven hours to depose every witness in the case, the number of deposition hours could mushroom uncontrollably.
As a result, it is very common in multi-defendant cases for the court to set some limitation on the number of total hours of deposition, either for each defendant group or for all defendants collectively, or a combination thereof. For example, limitations may be set related to the number of hours each inventor may be required to sit for deposition. Instead of requiring each inventor to sit for seven hours of deposition for each of the five defendants, a compromise may be negotiated such that each inventor only sits for a smaller number of hours.
Such limitations obviously restrict the amount of time each defendant has to pursue different avenues of discovery. This is particularly true when the amount of time allotted for depositions is imposed on the defendants as a group, rather than individually. Defendants might be limited in the number of deposition hours they can expend on issues that are individual to them or to a subset of the defendants. As a result, their ability to fully pursue all of the discovery they normally may fully pursue may be limited.
These kinds of restrictions on discovery in multi-defendant lawsuits require defendants to clearly prioritize the issues that are important to them and push the defendant group to address those issues. As a result, issues that ordinarily may have been pursued may have to take a backseat so that all defendants have an opportunity to pursue key issues important to them.
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