Quick Decisions in Patent Cases

Abstract

Patent litigation is notoriously expensive and time consuming. In the past decade, however, patent law has changed in many ways that expedite resolution of infringement disputes. This Article identifies and evaluates this trend toward quick decisions in patent cases. Balancing the savings in litigation costs against the potential for error, the Article defends many recent and controversial developments, including the Supreme Court’s invigoration of the patent eligible subject matter requirement, the new administrative proceedings created by the America Invents Act, and changes in the requirements for pleading patent infringement. These developments permit defendants to obtain rulings of invalidity or noninfringement before discovery begins, which was previously impossible. Prediscovery rulings cost relatively little and can discourage low-merit litigation. But resolving complex questions of validity or infringement on a thin factual record may increase the risk of error, so the Article suggests additional reforms to help ensure that quick decisions are also accurate decisions.

Keywords: patent law, patentable subject matter, America Invents Act, Federal Circuit

JEL Classification: K41, O34