Local Patent Rules for the EDVA??
To start, I have to admit my bias in favor of having local patent rules for the U.S. District Court for the Eastern District of Virginia (the "EDVA") and was involved in the process of the proposal discussed below. With that disclosure, I urge you to consider and offer support for this proposal. Obviously, the judges of the EDVA will decide on their own whether to adopt any proposed changes to their Local Rules. That said, the support of practitioners and interested bar organizations cannot hurt and may well help. Below is the text from an email distributed to the members of the Virginia State Bar’s Intellectual Property Section:
Over the past several years, many U.S. district courts have adopted some form of local patent rules (see http://www.nyipla.org/public/PatentLocalRules.doc for a slightly out-of-date list of U.S. district courts that have adopted some form of local patent rules) to provide judges and parties with a roadmap for handling patent cases. There are no local rules for patent cases in the U.S. District Court for the Eastern District of Virginia (the "EDVA"), and, indeed, the manner in which Judges in the EDVA handle patent cases vary widely from district to district and judge to judge. Believing that the EDVA would benefit from the adoption of some local rules for patent cases, several members of this IP Section of the Virginia States Bar contacted Chief Judge James C. Spencer to gauge the judges' willingness to consider a proposal for some sort of local patent rules and to clarify the procedure for having such a proposal considered by the Court. At that time, Chief Judge Spencer expressed a willingness to consider local patent rules and described the procedure for getting such proposed local rules considered, which involves submitting them to a Local Rules subcommittee of judges for consideration over the summer so that they can be vetted and presented at the Court's annual conference in the Fall. Thus, he suggested that any proposal be submitted by late May or early June. By way of further guidance and advice, Chief Judge Spencer suggested that the proposed rules not be too long or intricate, and that they afford the judges substantial discretion in implementing the proposed rules or procedures in their own cases.
With this guidance and timeline in mind, a small working group (involving Dabney Carr, Maya Eckstein, Dave Finkelson, Dana McDaniel, Chip Molster, Steve Noona, Bob Barrett and Robert Angle) worked to craft a proposal that balances the various competing factors and interests in EDVA patent litigation, promotes consistency amongst the divisions, and saves the parties involved time and money. Attached is a draft proposed Local Rule and model Pretrial Order. Without explaining all of the back-and-forth that went into them, the proposed Local Rule and model Pretrial Order are drawn from practices and procedures already used by some of the judges in the EDVA, require parties to produce relevant disclosures and encourage resolution of claim terms early in the case to ameliorate the problem of late claim construction overlapping with expert witness disclosures, and leave much of the implementation to the discretion of the individual judges (which was deemed necessary to have any chance of adoption by the Court as a whole). The draft proposal has been reviewed with Chief Judge Spencer and a few other EDVA judges, all of whom have been generally favorable to the proposal. Before making a formal presentation of the proposed Local Rule and model Pretrial Order to the Court, however, the drafters of the proposed Local Rule and model Pretrial Order are seeking the review and support of this Section and other IP-related organizations in the state.
Please review the attached draft Local Patent Rule and model Pretrial Order and provide any questions or feedback you may have to Bob Barrett at rbarrett@hunton.com by May 15.
