Judge Andrews Schedules Separate Infringement and Invalidity Trials
March 1, 2016
Publication| Intellectual Property
During the Rule 16(b) scheduling conference in a number of related Hatch-Waxman actions filed by AstraZeneca entities (C.A. Nos. 15-999-RGA, 15-1000, 15-1001, 15-1002, 15-1012, 15-1041, 15-1056, 15-1057, 15-1058) (D. Del Feb. 10, 2016), the Court consolidated the cases for the purpose of invalidity, scheduling separate invalidity (one for all defendants) and infringement (one for each defendant) trials. The single-day infringement trials will be scheduled to take place after the invalidity trial. Before each infringement trial, the plaintiffs must submit a “mini-Pretrial Order” with proposed findings of fact and no more than one motion in limine. The defendant must then agree with each fact or explain its disagreement. The defendant then has the opportunity to propose additional facts, to which the plaintiff responds likewise (but cannot add more facts—neither side receives a “reply” in this series of exchanges). Judge Andrews noted that he had employed similar procedures in the past.
Analysis: In multi-defendant cases and related cases, Judge Andrews may be willing to schedule separate trials for infringement but consolidate the cases for invalidity.