Complex Patent Litigation: Limiting Length and Limiting Intricacy

Abstract

Patent litigation poses a variety of challenges to the envisioned efficiency of trial. Such cases involve a high number of issues, unnecessary claim construction proceedings, difficulty interpreting the actual issues at play, and high-stakes for the parties involved. These parties (and in particular patent holders) are also encouraged by empirical trends in patent litigation to both seek jury trials and appeal after a verdict in a lower court. Generally, patent holders experience significantly more success with jury trials than a bench trial and that success rate is augmented by the fact that juries traditionally award much more in damages than a judge. Parties are also encouraged to appeal based on the Federal Circuit’s reversal rate of approximately 80%. Problems stemming from the complexity and length of patent litigation are further exacerbated by the differential knowledge between counsel and the bench. The attorneys involved in the case are often experts in the subject matter of the patent because they hold a technical degree and/or their firm originally prosecuted the patent while the judge may have a limited technical background, if any at all. The present paper seeks to address these problems by better enabling the bench. I argue that judges need to be empowered with a better understanding of the specific issues in each patent case as early as possible. Once possessed of this knowledge, judges also need tools to place limitations on non-critical claims in a manner that does not raise, or can avert any constitutional problems. Furthermore, once the relevant claims are selected, the court should consider potentially dispositive issues early in the case through Markman hearings. In order to better manage complex patent litigation, where judges may have little technical training and the attorneys involved are often experts on the relevant subject matter, the district courts and Federal Circuit should formalize and rely on technical tutorials and claim limitation procedures that do not infringe upon constitutional rights so it is possible to conduct Markman hearings and settle potentially dispositive issues early in litigation. Finally, this paper argues all these judicial techniques should be utilized in conjunction with discovery reform, and in particular staging litigation.