September 2, 2009
Bifurcation of Liability and Damages in Patent Litigation in the District of Delaware
Patent owners thinking about initiating patent infringement actions in the District of Delaware might want to consider a recent Memorandum Order entered by Judge Sue L. Robinson. In StreamServe v. Exstream Software, Judge Robinson held that “I have determined that bifurcation is appropriate, if not necessary, in all but exceptional patent cases.” Judge Robinson is one of three District Court Judges in the District of Delaware and the District’s former Chief Judge. It appears likely that bifurcation of patent infringement cases into a liability trial and, if necessary, a damages trial will now be the norm in the District of Delaware. Patent owners who believe that trying their damages case with their liability case in effect pays a certain degree of homage to their patent’s strength, may want to consider filing their case in another District without similar bifurcation laws.