Patent Case Management Judicial Guide

650 Pages Posted: 16 Jan 2009 Last revised: 5 Jun 2009

See all articles by Peter S. Menell

Peter S. Menell

UC Berkeley School of Law

Lynn H. Pasahow

Fenwick & West LLP

James H. A. Pooley


Matthew D. Powers

Weil Gotshal & Manges LLP

Date Written: June 1, 2009


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.

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

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: or

Peter S. Menell (Contact Author)

UC Berkeley School of Law ( email )

2240 Bancroft Way
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

Independent ( email )

Matthew D. Powers

Weil Gotshal & Manges LLP ( email )

201 Redwood Shores Parkway
Redwood Shores, CA 94065
United States

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