January 2024 Marshall Patent Case Scheduling Conferences: Room for “Mini-Markmans?”

The weather cleared sufficiently for driving (or walking) to the bimonthly scheduling conferences in Marshall yesterday. And the dates we got got me thinking.

As the attached reflects, there were 24 lead cases heard – 29 total counting member cases, and the court assigned claim construction and jury selection dates for each.

Trial settings are maintaining their very slight speeding up that we saw a couple of months ago, and at 15-16 months from CMC to trial are only a month of the norm. Markman settings remain later than they used to be –  they have moved back five months from the old 6-8 months from the scheduling conference and most are now 11-13 months from the CMC.

So  a lot more time before claim construction – it is now 5-6 ½ months from the  last disclosure date (invalidity/subject matter disclosures) to 4-1 disclosures.   Those used to almost overlap – and in more than a few cases they actually did. Now the parties have time to seek leave to push the disclosures back and investigate the case more thoroughly before beginning the claim construction process.

The new spacing also raises another issue. A number of years back there was a trend in favor of “mini-Markmans” – expedited claim construction proceedings involving one or perhaps two or three claim terms alleged to be dispositive. Those were rarely done in Judge Gilstrap’s court because they could not be scheduled any quicker than the full claim constructions proceedings. They were done – eDekka was a notable example – but in some cases the case would be stayed if the court opted for a mini-Markman, since the intent was usually to focus the case activity on the potentially dispositive issue – so the issue of the mini-Markman Bigfooting the full claim construction proceeding – or vice versa – didn’t really come up very often.

It will be interesting to see whether the extra time between disclosures and full claim construction might be used by some parties to propose streamlined “mini-Markmans” or other proceedings to take potential threshold issues out for a spin.

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