Using Scheduling Orders To Manage Claim Construction

By Marius Meland (September 30, 2005, 12:00 AM EDT) -- While a scheduling order under Fed. R. Civ. P. 16 is commonly used for setting pretrial deadlines, a scheduling order is particularly useful in patent cases for effectively managing claim construction and common patent discovery disputes.  While the use of scheduling orders in patent cases has varied, the vast majority of scheduling orders fall into one of three categories:  (i) generic orders; (ii) orders providing a briefing schedule on claim construction; or (iii) orders providing briefing and discovery schedules on claim construction.  A generic scheduling order lacks any reference to claim construction or other patent issues.  For example, the order may only set deadlines for amended pleadings, expert reports, close of discovery and dispositive motions.  In the second category, a scheduling order typically sets deadlines for at least opening and responsive claim construction briefs.  A scheduling order in the last category typically sets deadlines for proposed claim constructions and infringement claim charts.  Though a handful of district courts have established local patent rules with the goal of a fair, speedy and efficient resolution of patent cases, a scheduling order can help to achieve this goal for any district court. ...

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