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Patent Case Management Judicial Guide


Peter S. Menell


University of California, Berkeley - School of Law

Lynn H. Pasahow


Fenwick & West LLP

James H. A. Pooley


World Intellectual Property Organization (WIPO)

Matthew D. Powers


Weil Gotshal & Manges LLP

June 1, 2009

UC Berkeley Public Law Research Paper No. 1328659

Abstract:     
As the number, size, and complexity of patent cases have grown throughout the United States over the past several decades - paralleling expansion in the role of high technology enterprises in the U.S. economy - the need for a comprehensive, user-friendly, and practical judicial guide for managing patent cases has become increasingly apparent. Although similar in many respects to other forms of complex civil litigation, patent cases pose distinctive case management challenges. Patent cases feature complex and dynamic technological facts to a degree rarely encountered in most other areas of litigation. Furthermore, they employ unique procedures (such as claim construction hearings) that affect and interact with other aspects of the case (such as summary judgment motions and expert reports) in ways that create unusual scheduling and substantive complexity. In addition, patent cases often entail distinctive and difficult discovery issues, extensive use of experts, and particularly complex dispositive and pre-trial motion practice.

Because of the decentralized, general jurisdiction structure of federal courts in the United States, much of the experience relating to managing patent cases is silo-ed in particular judicial chambers. As one jurist aptly noted, best practices for patent case management have been transmitted largely through word of mouth. Given the crowded, diverse dockets of federal courts, the accessibility and reliability of such knowledge is far from ideal. Judges in some districts have partially codified recommended practices in the form of Patent Local Rules, standing orders, and patent jury instructions, but these documents do not address the full range of distinctive challenges posed by patent litigation. Furthermore, such judicial wisdom continues to evolve.

Recognizing these patterns, the authors undertook in 2006 to survey the range of approaches and perspectives on patent case management, foster discussion and analysis of patent case management techniques, and develop an authoritative guide for judges, law clerks, practitioners, and patent and civil procedure professors and scholars. Given the dynamism of the patent system and patent litigation, the authors plan to revise the Guide on a biennial basis.

Number of Pages in PDF File: 650

Keywords: Patent, Patent Case Management, Patent Local Rules, Jury Instructions, Patent Settlement, Claim Construction

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Date posted: January 16, 2009 ; Last revised: June 5, 2009

Suggested Citation

Menell, Peter S. and Pasahow, Lynn H. and Pooley, James H. A. and Powers, Matthew D., Patent Case Management Judicial Guide (June 1, 2009). UC Berkeley Public Law Research Paper No. 1328659. Available at SSRN: http://ssrn.com/abstract=1328659 or http://dx.doi.org/10.2139/ssrn.1328659

Contact Information

Peter S. Menell (Contact Author)
University of California, Berkeley - School of Law ( email )
215 Boalt Hall
Berkeley, CA 94720-7200
United States
Lynn H. Pasahow
Fenwick & West LLP ( email )
Silicon Valley Center
801 California Street
Mountain View, CA 94104
United States
James H. A. Pooley
World Intellectual Property Organization (WIPO)
34, chemin des Colombettes
1211 Geneva 20
United States
Matthew D. Powers
Weil Gotshal & Manges LLP ( email )
201 Redwood Shores Parkway
Redwood Shores, CA 94065
United States
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