Judge Albright’s newest Order Governing Proceedings for Patent Cases (version 3.2) changes Markman briefing procedure from simultaneous to non-simultaneous briefing and includes corresponding changes to the default schedule. For pending cases with a scheduling order under an older OGP version, there may be some confusion as to whether briefing is governed by the currently-entered scheduling order (requiring simultaneous briefing) or the new OGP Version 3.2 (requiring non-simultaneous briefing).
For pending cases potentially affected by this change, Judge Albright entered a Standing Order explaining that OGP Version 3.2 applies retroactively to any case where the deadline for the parties’ opening Markman brief is more than one week after the date of this standing order, November 9. Thus, OGP Version 3.2 applies to any case where the opening Markman brief is currently due after November 16. In such cases where an older scheduling order has already been entered, the parties should file an amended proposed scheduling order to conform with OGP 3.2.