OGP v3.3 & New Sealing + Redaction Order

Waco Division business keeps churning on, even while there’s a trial underway. So we wanted to bring you a couple general updates that relate to go-forward procedures in Judge Albright’s patent cases.

First, the Court has issued another update to its Order Governing Proceedings for Patent Cases (this time version 3.3). Based on our initial review, we understand the major updates to be:

  1. Transfer Motions: OGP v3.2 required that motions to transfer be filed no later than 14 days following the Case Management Conference. That requirement has since been abolished. (It was repeatedly waived recently, for motions relating to the continuing pandemic-related unavailability of Austin and Midland-Odessa as trial venues.) The Court’s related briefing intervals and page limits for transfer motions have been maintained, but moved to the “General Issues” section of the OGP.
  2. Venue Discovery: OGP v3.2 formerly contained a statement of the Court’s default venue discovery limits. Those limits had since been superseded by the Court’s November 19 Standing Order Regarding Venue and Jurisdictional Discovery Limits for Patent Cases (which we covered previously). Accordingly, that content has now been removed from OGP v3.3.
  3. Markman Briefing Deadline: OGP v3.2 formerly required that, with respect to Markman briefing, “Unless otherwise agreed by the parties, all filings will take place at 5:00 p.m. CT.” That provision has now been removed.
  4. Markman Submissions: If parties wish to submit a technical tutorial, the deadline is now ten days before the Markman hearing, as opposed to the prior deadline of one week. Similarly, the parties are now directed to submit electronic copies of all Markman briefs and exhibits to chambers ten days before the Markman hearing, as opposed to the prior deadline of one week.
  5. Technical Adviser: However, as a new relaxation of a former requirement, “if the Court appoints a technical adviser for claim construction, the parties do not need to provide a copy of the Markman briefs to the Court.”
  6. Model Schedule: Although not a new substantive requirement, Appendix A (containing a model default schedule) has been modified to make explicit the parties’ deadline to submit a Scheduling Order of two weeks following the Case Management Conference.

And that seems like it—but we may update this post if we later recognize any other significant updates…

Second, the Court recently posted its February 12 Standing Order Regarding Filing Documents Under Seal in Patent Cases and Redacted Pleadings, and this past week started posting it to the Court’s various open case dockets.

We excerpt the most relevant portion below (but if you practice in this Court, read the full order!):

As a public forum, the Court has a policy of providing to the public full access to documents filed with the Court. Nevertheless, parties in patent cases routinely … rely on information that is confidential. Therefore, in all patent cases … the Court hereby grants leave for any party to file materials containing confidential information under seal without filing a separate motion seeking leave of the Court… The filing party shall file a publicly available, redacted version of any motion or pleading filed under seal within seven days. 

[Additional content follows regarding exhibits and duty to cooperate, plus a clarification that this order applies solely prospectively.] 

The redaction requirement obviously imposes an additional obligation on patent litigants practicing in the Waco Division—though it also removes the prior requirement to file motions to seal. But (speaking from personal experience) those redactions should be pretty manageable.

And we at the blog, on behalf of the Fourth Estate, certainly endorse the Court’s “policy of providing to the public full access” to the important patent-law-related developments that arise on a regular basis in the Waco Division. Not to mention that allowing for greater public access in this way brings the Waco Division in step with other busy patent dockets, like the District of Delaware (Administrative Procedures Governing Filing and Service by Electronic Means, ⁋ G(1)) and the Eastern District of Texas (Local Rule 5(a)(7)(E)).

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(Image credit: Licensed by ImageCreator per Creative Commons 3; original image here.)