Does the Eastern District of Virginia Need Local Patent Rules?
In recent years, federal district courts around the country have enacted local rules governing patent cases. The Northern District of California was one of the first, and its local rules are now extensive and detailed. The Eastern District of Texas enacted local rules to speed up the litigation of patent cases, and it is now the most popular forums for the litigation of patent suits in the country. The volume of patent cases, however, has slowed the E.D. Texas docket considerably. Other districts have followed suit, including the Western District of Pennsylvania and, most recently, the District of Massachusetts, adopting local rules for patent cases. At least one result (and perhaps an underlying purpose) of those rules has been to encourage the filing of patent cases in those districts.
The Eastern District of Virginia is the original “Rocket Docket” having enacted local rules to speed up cases almost forty years ago. The E.D.Va. continues to be one of the fastest courts in the United States, with an average time to resolution of civil cases of only about six months. The E.D. Va. has also been a relatively popular forum for patent cases, ranking in the top ten of federal district courts for filing patent suits.
The E.D.Va., however, has no local rules for patent cases. Rather, the three divisions of the court, and even judges in the same division, follow different procedures for dealing with their cases and different ways of handling patent cases. As a result, there is little predictability in the E.D.Va. on issues such as whether tol extend the pre-trial period for patent cases to allow for the greater amount of preparation necessary in such cases, whether the Court will allot more trial days for a patent trial than the two or maybe three days it allows for most trials and whether the Court will incorporate patent-specific procedures, such as the filing of claim charts and the scheduling of a Markman hearing.
There are many potential benefits to adoption of local patent rules. Scheduling can be more uniform, and the litigation can be streamlined. Conducting claim construction early in the case can remove uncertainty and encourage earlier resolution of cases, decreasing the Court’s workload. Given the volume of patent cases filed in the E.D.Va., the Court should consider adopting limited local rules addressing the unique features of patent litigation. Such rules should be simple, and they should be permissive, so that individual judges can adapt them to each judge's docket and the needs of a specific case.
