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`District Court Trial Dates Tend to Slip After PTAB Discretionary Denials | Patents Post-Grant
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`HOPES GRAY
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`Patents Post-Grant
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`Inside Views & NewsPertaining to the Nation's Busiest Patent Court
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`District Court Trial Dates Tend to Slip After PTAB
`Discretionary Denials
`
`By Scott McKeown on July 24, 2020
`
`
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`https:/Awww.patentspostgrant.com/district-court-trial-dates-tend-to-slip-after-ptab-discretionary-denials/
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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
`
`the past few months.At the same time,patentlitigation has increased over the first two
`quarters of the year by 20%. This surge has been greatly aided by the explodingpopularity
`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.
`
`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"
`
`180
`
`160
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`140
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`166
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`20
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`170
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`100
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`60
`
`40
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`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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`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 denypetitions haveslid. While
`WDTX showsa lower averagedelay,this is likely a due to that court’s preference to push out dates
`ona recurring basis rather than moresignificant schedule remodels.
`
`W.D. Tex.: Average and Maximum DaysTrial "Slid"
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`45
`
`40
`
`42
`
`A
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`35
`
`30
`
`25
`
`20
`
`10
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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, delayswill certainly
`increase further as the courts work throughtheir growing backlog.
`
`In the meantime, as one PTABpanel explained it, the PTAB has been firing on all
`cylinders.
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`Patents Post-Grant
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`Copyright © 2020, 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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