On July 26, 2013, the Federal Circuit Advisory Council issued a Model Order Limiting Excess Patent Claims and Prior Art (.pdf).   The Model Order requires a successive narrowing of elected patent claims by limiting the patent owner to no more than five asserted claims per patent after issuance of the claim construction order.  Also at that time, the accused infringer is limited to no more than six asserted prior art references per patent.   If the patent owner asserts infringement of only one patent, all per-patent limits are increased by 50%.  The purpose of the Model Order is to control the cost and complexity of patent litigation.  While the patent bar has waited to see how many Courts would adopt the Model Order since July, this author has located only one court to adopt some form of the Model Order, the Eastern District of Texas. 

On October 29, 2013, Chief District Judge Leonard Davis of the U.S. District Court for the Eastern District of Texas issued General Order 13-20 (.pdf) that adopted many provisions of the Federal Circuit’s Model Order.  The General Order slightly differs from the Model Order with respect to the timing in electing patent claims and prior art.  Two months prior to the General Order, Judge Michael Schneider issued an opinion in Keranos, LLC v. Silicon Storage Tech. et al., (.pdf), 2013 WL 5763738, *4 (E.D. Tex. Aug. 5, 2013), relying upon the Federal Circuit Model Order in limiting the accused infringer to two or three prior art references per claim.

Key Takeaway:

Although some anticipated that many District Courts would be quick to adopt the Federal Circuit’s Model Order, adoption of the Model Order has been rare.