CAFC Council Rescinds Model Order ….

We previously reported that the Federal Circuit Advisory Council (“the CAFC Council”) recently approved a “Model Order Limiting Excess Patent Claims and Prior Art” that set default numerical limits on the number of asserted patent claims and prior art references. Prior to this, we reported in October 2011, that Chief Judge Randall Rader of the Federal Circuit had announced that the CAFC Council had adopted a Model Order to streamline and reduce e-discovery costs.

Yet on Friday, the CAFC Council website posted a notice regarding both these model orders, stating: “Model orders concerning e-discovery and limitations on claims and prior art were posted on the court’s website. Those orders have now been removed since the court has not sponsored or endorsed the orders. In light of the court’s determination, the advisory council should not be viewed as having sponsored or endorsed these orders on behalf of the court.” (emphasis added)

This is a significant pivot by the CAFC Council, and one which deserves additional monitoring by IP practitioners. Importantly, will District Courts continue to use the former Model Orders, or at least their spirit in attempting to streamline patent litigations? The Gibbons IP Law Alert will keep readers up to date on this, and other relevant IP law developments.

Ralph A. Dengler, a former Director in the Gibbons Intellectual Property Department, and Todd M. Nosher, a former Associate in the Gibbons Intellectual Property Department, co-authored this post.
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