Chasing the Rocket Docket in IP cases
As Law360 recently reported (“Judges Go On Offensive Against Rash Of Weak Motions,” 5/26/2010), long-time District Judge William G. Young (D. Mass) recently began raising the possibility of sua sponte summary judgment as a means of keeping patent litigants in line and restraining the tendency to file multiple or weak summary judgment motions. The article, and the case that prompted Judge Young’s actions, provide an interesting contrast with life in the United States District Court for the Eastern District of Virginia.
The case is Ambit Corp. v. Delta Air Lines Inc. et al., case number 1:09-cv-10217 (D. Mass.), in which Ambit alleged that the defendants’ “Gogo® Inflight Internet” system and service, which allows passengers on Delta flights to use personal communication devices while in flight, infringes one or more claims of United States Patent No. 7,400,858.
Reciting the procedural history of that case is beyond the scope of this blog. The docket is here, for those who’d like to look at some of the eye-opening electronic orders that have been entered. See the docket entries on
Delta said it was just trying to help the Court by making a limited motion. The January 28th electronic order on the docket clearly did not buy that, stating that "Delta utterly misunderstands the nature of summary judgment practice. It put the matter of obviousness in issue by its motion and was obligated to set forth all the grounds that demonstrate there is no triable issue on that defense...." Ultimately, Delta survived. It’s probably worth noting that Judge Young’s case management efforts have recently been rewarded by no less than 10 motions in limine filed by Ambit on the same day last week.
Law360 reports that other federal judges agree with Judge Young that IP litigants move for summary judgment too frequently, in piecemeal fashion or based on incomplete evidence, although they do not embrace his solution: a rule that a movant for summary judgment must address every defense pertaining to a given issue, or face judgment against it on the same issue.
As local practitioners know, summary judgment is a one shot deal in the Eastern District, pursuant to Local Rule 56(C) (“Unless permitted by leave of Court, a party shall not file separate motions for summary judgment addressing separate grounds for summary judgment.”). The grounds for summary judgment are then limited by Local Rule 7(F)(3)’s page limits.
For Eastern District discussions of sua sponte summary judgment, see the April 2, 2010 Judge Ellis opinion here (discussed in yesterday’s Netscape v. ValueClick blog post), and Jackson v. Iris.com, 524 F. Supp. 2d 742 (E.D. Va. 2007) (Judge Doumar, granting summary judgment sua sponte on whether contract claims must go to arbitration).
Judges in the Eastern District of Virginia also sets firm trial dates early in cases and are renowned for reluctance to order a continuance, a case management tactic endorsed in the Law360 article by a different federal judge.
A motion for summary judgment on whether the Eastern District of Virginia is ahead of the general federal case management curve appears to be in order.
