Judge Andrews recently bifurcated a case in which the plaintiff and defendant each asserted one patent against the other into two one-patent trials. Viatech Techs., Inc. v. Microsoft Corp., C.A. No. 14-1226-RGA (D. Del. June 6, 2016). The patents related to the same technology, and the defendant’s asserted patent was referenced as prior art to the plaintiff’s asserted patent. However, the Court decided “that it would likely be better to schedule two trials rather than one,” explaining:
First, patent trials are difficult enough for juries without adding to the degree of difficulty. Trying both patents in one case would involve additional infringement analysis and damages analysis over a trial on just one patent. Extra testimony can lead to confusion. Second, it appears that Defendant’s assertion of its patent against Plaintiff’s product is of lesser importance in the scheme of things. Although there was briefing on asserted claim disputes on both patents, the parties agreed that the ten most important ones all related to Plaintiff’s patent. My judgment is that resolution of the claims involving Plaintiff’s patent will likely resolve the entire case. Depending on the schedule, it may never be necessary to resolve the claim disputes on Defendant’s patent. Thus, I think scheduling separate trials is likely to result in economy.