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`10/9/21, 3:46 PM
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`District Court Trial Dates Tend to Slip After PTAB Discretionary Denials - Patents Post-Grant
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`Delaware CasesSlipping 4-6 Months
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`The practice of denying AIAtrial petitions in view of competing district court trial dates has brought
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`of the Western District of Texas (WDTX) with non-practicing entities — a
`district that the PTABis increasingly deferring to in its discretionary denials based upon competing
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`trial dates.
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`While Patent Ownersare quick to point to a looming district court trial date as being set in stone,in
`reality, these dates are often reset once the PTAB hurdleis cleared.
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`While still a small data set, cases that are denied by the PTAB based upon a looming trial date have
`seen significant delays in some districts.
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`For example,in the patent suit heavy District of Delaware, 100%of the cases denied by the PTAB
`for an earlier trial date have been rescheduled — anywhere from 4-6 months.Thisis a significant
`delay that may militate in favor of institution given the relative speed of an 8-month PTABtrial
`schedule:
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`D. Del.: Average and Maximum DaysTrial "Slid"
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`180
`
`160
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`140
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`120
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`166
`
`20
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`100
`
`40
`
`D. Del. Average
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`D. Del. Maximum
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`https:/Awww.patentspostgrant.com/district-court-trial-dates-tend-to-slip-after-ptab-discretionary-denials/
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`IPR2022-00092 - LGE
`Ex. 1009 - Page 2
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`10/9/21, 3:46 PM
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`District Court Trial Dates Tend to Slip After PTAB Discretionary Denials - Patents Post-Grant
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`In the WDTX, 70% oftrial datesinitially relied upon by the PTABto deny petitions haveslid. While
`WDTX showsa lower average delay,thisis likely a due to that court’s preference to push out dates
`onarecurring basis rather than moresignificant schedule remodels.
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`W.D. Tex.: Average and Maximum DaysTrial "Slid"
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`45
`
`40
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`42
`
`tun
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`35
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`30
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`W.D. Tex. Average
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`W.D. Tex. Maximum
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`Taking all districts into account the averagetrial delay is 3 months, with a maximum of 7 months.
`That said, with COVID-19 delaying trials scheduled for the last 4-5 months, delays will certainly
`increase further as the courts workthroughtheir growing backlog.
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`In the meantime, as one PTAB panel explained it, the PTAB has been firing on all
`cylinders.
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`Copyright © 2021, Ropes & Gray LLP.All Rights Reserved.
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`https:/Awww.patentspostgrant.com/district-court-trial-dates-tend-to-slip-after-ptab-discretionary-denials/
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`IPR2022-00092 - LGE
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