Judge Sue Robinson requires parties who wish to file early summary judgment motions to first seek leave to do so. As Her Honor recently explained, “[e]arly summary judgment motions are disfavored by this court, unless the motion would reduce the scope of trial.” Butamax Advanced Biofuels LLC, et al. v. Gevo, Inc., C.A. No. 12-602-SLR, Memo. at 1 (D. Del. Mar. 12, 2013). Judge Robinson considered such a motion for leave to file an early motion for summary judgment of non-infringement in this Butamax case and denied leave to file the motion.
The defendant’s motion was premised on the construction of a claim term adopted for a different patent in a separate action between the same parties. The Federal Circuit had issued an opinion on construction of the term at issue, although the parties disagreed over the import of that claim construction. The parties also disagreed over whether that claim construction should apply to the same term in the patent-in-suit in the instant action. Id. at 1-2. Furthermore, Judge Robinson explained that “[r]esolution of whether a specific strain infringes will not significantly impact the parties’ discovery practice.” Id. at 2. For these reasons, Her Honor found that the summary judgment motion would not significantly reduce the scope of trial and denied the motion for leave.