The Rule 16 Scheduling Conference is set by Court Order. Samples of the Judges current Scheduling Orders for patent cases can be found to the right. Each Judge anticipates that the parties will meet and confer and agree upon most provisions. If the Judge has provided a trial date in the Order setting the Rule 16 Conference, we recommend working backward from that date.
Patent Trials are usually scheduled for either 1 or 2 weeks. Recently the Judges have been experimenting with various forms of phasing or bifurcation of infringement, validity, damages and willfulness. The pretrial conference should be scheduled between 2 and 6 weeks prior to trial, depending on the Judge. Briefing on dispositive motions and claim construction should be scheduled so that a hearing can be held approximately 3 months prior to the pretrial conference. The Judges generally prefer resolving summary judgment and claim construction at the same time. Expert discovery usually begins after the close of fact discovery and sometimes after the Markman decision depending on your judge. It is obviously more efficient if depositions follow written discovery. The parties should consider limiting depositions either by total number of hours or by total number of depositions or both. It is helpful to establish one or two discovery conferences with the Court during the course of the litigation to resolve any discovery disputes. The Judges are receptive to this approach.
The Rule 16 Scheduling Conference