Page 25 - Delaware Lawyer - Winter 2022

In the 1980s, as corporate Ameri- ca began to appreciate more fully the importance of intellectual property to the value of publicly traded com- panies and to the competitiveness of U.S. companies in the global market- place, the volume of patent litigation steadily increased. With its sophis- ticated and experienced bench and reputation for the skillful handling of patent cases, the District of Dela- ware became a popular choice among patent litigants. Delaware’s diverse and comparatively well-educated jur y pool made the Court attractive as well.
The shift in attention to trial courts, and more specifically to jury trials, also coincided with the ap- pointment of Judge Joseph J. Farnan, Jr. to the Court in 1985. His obvious enthusiasm for trials, his faith in the jur y system, and his deep knowledge
of evidentiary issues fit well with the patent bar’s newfound enthusiasm for jury trials. At the time of his re- tirement in 2010 (Chief 1996-2000), Judge Farnan had presided over ap- proximately 170 patent trials. To put this number in perspective, a Dela- ware Law Review article published in 2004 reported that from 1997-2000, Judge Farnan held more patent tri- als than all but one judicial district in the entire country.3
The 1990s
As a result of all of these develop- ments, patent filings in the District of Delaware had increased dramatically by the end of the 1980s. The num- ber of new patent cases doubled dur- ing the 1980s, and over the 1990s, the District Court judges embarked on a path of continual trial-focused innovation and experimentation that continues to this day and has kept the District in the forefront of national patent litigation.
Among the more important changes the Court introduced dur- ing this period were relatively short patent trials, generally limited to no more than two weeks. By forcing trial lawyers to more tightly focus and pri- oritize their presentation of evidence, it improved the quality of advocacy and eased the burden on jurors. The Court also introduced several jury- friendly measures, including limited sidebars and strict limitations on lengthy speaking objections.
The Court also made administra- tive changes during the 1990s that improved the management of its docket. The Court aimed to set early and firm trial dates, and the poten- tial of getting to trial within 12 to 18 months of filing, combined with a growing string of plaintiffs’ victo- ries in Delaware patent jury trials, made the district enormously popu- lar with patent owners. Also, in 1992
the Court began to randomly assign cases to the judges as they were filed, bringing a welcome objectivity and predictability to the process.
The Court established an Advisory Committee on Intellectual Property Litigation, composed of judges and experienced patent litigators from around the country, to discuss in an informal setting how the Court could try patent cases more efficiently. Al- though the Committee considered many options for more standardized patent rules, unlike many other dis- tricts, the Court consciously chose not to adopt rigid Local Patent Rules, preferring instead to manage its cases through tailored Scheduling Orders, using forms that can evolve as needed.
In 1996, the judges quickly adapt- ed to the U.S. Supreme Court’s rul- ing in Markman v. Westview Instru- ments, Inc.,4 which held that the interpretation (“construction”) of patent claims is an issue of law for the court. These “Markman hear- ings” have now been a routine fea- ture of district court patent litigation for the past 25 years, and Delaware judges have continually refined and optimized their practices and proce- dures regarding claim construction identification, briefings, hearings and orders.
The 2000s
The Court’s commitment to its patent docket led to a doubling in the number of patent filings from 1990 to 2000. Despite not having its full complement of judges for long stretches, patent filings in the Dis- trict of Delaware doubled again from 2000 to 2010.
In an interesting twist, a relatively high percentage of the patent cases tried in Delaware since 2000 have been bench trials. This is mostly due to the large number of cases filed un-
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