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Several Judges Share Perspectives with Delaware IP Attorneys

Attendees of the May 13th annual meeting of the IP Section of Federal Bar Association’s Delaware Chapter were privileged to hear perspectives from a variety of judges, including Chief Judge Rader and Judge Dyk from the Federal Circuit Court of Appeals, Judge Jordan from the Third Circuit, Chief Judge Davis of the Eastern District of Texas, Magistrate Judge Grewal of the Northern District of California, and Chief Judge Sleet and Judges Robinson, Stark and Andrews of the District of Delaware.

In addition to opening remarks from Chief Judge Rader and Chief Judge Sleet, the event included a district court judicial panel, an appellate judicial panel, and a presentation by Judge Stark, the soon-to-be Chief Judge of the District of Delaware. Judge Stark’s presentation provided a statistical overview of litigation in the District and the Court’s recently implemented Patent Study Group (PSG). The presentation also touched upon current (e.g., Judge Robinson’s new model scheduling order) and anticipated changes (e.g., Judge Stark’s new model scheduling order expected in later 2014) stemming from the results of the PSG.


The district court judicial panel addressed a range of issues from the question of whether and when to stay patent litigations in view of co-pending Inter Partes Review proceedings before the USPTO, the likely impact of the Supreme Court’s recent Highmark and Octane Fitness decisions on finding cases “exceptional” and awarding attorneys’ fees, to perspectives on the practice of allowing early claim construction and summary judgment.

The appellate judicial panel, moderated by Judge Jordan, included Chief Judge Rader and Judge Dyk. The panel delicately addressed questions regarding appellate deference to district court decisions, expectations in light of the Supreme’s guidance in Highmark and Octane Fitness, movements afoot to address perceived abusive tactics in patent litigation, the judges’ experiences sitting by designation as a trial court judge, and thoughts on effective appellate advocacy. Chief Judge Rader noted that the anticipated Supreme Court decision in Teva v Sandoz should offer more clarity and settle some lingering questions regarding the appellate deference standard, while Judge Dyk wryly noted the Federal Circuit’s desire for more appellate deference from the Supreme Court.

Judge Dyk observed, particularly in light of his experiences in private practice, that claims for attorneys’ fees can be toxic to relationships between counsel and can further undermine civility. His Honor commented that the “totality of the circumstances” test can be a challenge for courts to navigate.

In addressing their experiences as a trial judge by designation, both appellate judges observed the challenge and importance of understanding the complex technical issues being presented, with Judge Dyk noting how difficult this can be for a district court judge without the same resources and with many more responsibilities than an appellate judge.

The annual event well serves the goal of promoting communication and understanding between the judiciary and members of the local bar and continues to get better with each passing year. For further information about the event, please feel free to contact the author of this post or any contributor to the Delaware IP Law blog.

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