Intellectual Property

3 Lessons From The Delaware Bench Bar Conference (Part II)

The goings-on in Delaware are as relevant as ever to patent litigators and their clients.

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Let me continue our discussion of the Delaware Chapter of the Federal Bar Association’s 2023 Bench and Bar Conference. Last week, I covered three lessons from the first day of the conference (at least from the panels I was able to attend). This week, I will take a look at some of the points raised during the two panels I attended on the conference’s second day. As with the first day, the lessons gleaned more than justified the drive to and fro on the New Jersey Turnpike. And just like the first day, plenty of familiar faces and names from the Delaware patent bar were in attendance. This year’s event represented the return of the proceedings to the local calendar after a hiatus since May 2018. That’s a long time in a busy district like Delaware, which has seen plenty of change in the interim, such as the elevation of Judge Leonard Stark from the Delaware bench to the Federal Circuit in 2022. No one in this readership needs a reminder of how important Delaware patent cases are, particularly in the biotech and pharma industries, in terms of helping patent law nationwide over time. As usual, there is no lack of interesting Delaware patent matters making their way through the busy docket — many of which will end up as the subjects of Federal Circuit review. Put another way, goings-on in Delaware are as relevant as ever to patent litigators and their clients.

Unlike some other legal conferences, where it can sometimes seem like attendees are just biding time to secure their needed CLE credit, the audience at this bench/bar seemed not only engaged in absorbing the content but also happy to have the ability to interact with each other outside of their usual roles as adversaries. That was nice to see, as well as a reminder of how interacting with other lawyers outside of an adversarial posture can often be a good way to build camaraderie that will serve clients in good stead down the line. Still, the focus of the conference’s second day was as much on the content as the first day was, with both panels that I attended worthy of further discussion.

First, I was glad that I made it in time for the first panel, which featured three of Delaware’s active magistrate judges, all of whom are extremely busy and extremely well-regarded for their handling of their significant workloads. There was a lot to consider in terms of comments from the panelists on how best to take advantage of the help that a magistrate judge can provide litigants trying to navigate a challenging docket like Delaware’s, particularly in complex matters like patent cases. Whether it’s a request for a referral for early adjudication of a key summary judgment motion or even a midstream consent to a magistrate judge’s handling of trial so as to keep an assigned trial date, it behooves litigators and their clients to think strategically as to how best utilize experienced magistrate judges, such as those in Delaware, to help move their cases along on the merits. Likewise, because of the overwhelming workload in Delaware and the need for help from visiting judges, choosing to go with one of the magistrate judges could add a degree of predictability that would be attractive to litigants over the uncertainty of working with a less familiar visiting judge. It was a very interesting discussion and a great appetizer for the blockbuster discussion of trial tactics that was to follow in the next panel.

After the magistrate judge panel, the patent litigators in the audience made their way to a separate room for a patent trial-focused discussion led by an all-star panel of sitting district court judges, as well as one of the leading patent trial lawyers of our time and a long-time Federal Circuit judge. And the value of the content matched the esteem of the panelists, with practical tips and observations from informed perspectives on offer. Right off the bat, it was apparent that there was a deep respect for the work and focus of jurors on the part of the panelists — with the concomitant expectation that counsel would match that hard work and focus in terms of presenting their cases as adeptly and efficiently as possible. At the same time, there was a recognition that patent cases can be very complex, with the additional challenge of trials often being held with very strict time limits for each side to make their case. There was a consensus that a standard patent trial would normally be slotted for five days, with about 12 hours allotted to each side for their trial presentation. Because of the strict time limits, the hardest issue to make a full presentation on is often invalidity, even as the time limits force the trial teams to make their cases as succinctly and directly as possible. Still, less than 2% of patent cases filed get resolved at trial nowadays, making the challenge of getting frequent trial experience a daunting one for even the busiest current patent litigators. Considering how busy Delaware is, however, practicing in that court can perhaps be an avenue to getting trial experience in a way that practice in less busy courts does not allow.

Ultimately, both days of the event were full of thoughtful and engaging content. Kudos to the organizers for pulling together such a great mix of panelists and topics, even after a long hiatus due to worldwide events that we are collectively happy to have behind us. Both the bench and bar of Delaware are operating at a high level, with particular relevance for those practicing patent litigation. Together, they are setting a high standard for patent practice for patent litigators and jurists nationwide to reach for. It was great to visit, but even better to learn from the experiences and insights shared.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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