Neutral Litigants in Patent Cases
74 Pages Posted: 8 Aug 2012 Last revised: 2 Jan 2015
Date Written: February 25, 2013
Patent cases at the district court level are one of the most complex, time-consuming, and contentious forms of civil litigation. As an alternative to the conventional, two-sided adversarial process, this Article proposes a structural change to the manner of conducting patent litigation in the district courts: the addition of a neutral litigant who, as the “third” side, represents the public interest and participates alongside the parties in all aspects of the case. Based on a novel game theoretic model, along with lessons from the International Trade Commission and the Solicitor General’s amicus practice before the Supreme Court, the presence of the neutral litigant is expected to decrease the overall level of contentiousness so as to improve the district court’s ability to adjudicate complex issues in a manner that both advances the development of the law, and serves the public interest in the fair, accurate, timely, and efficient resolution of patent disputes.
Keywords: Litigation, Procedure, Patent Litigation, Game Theory, ITC, Section 337, OUII, FTC, Amicus
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