Patent Showdown at the N.D. C[orr]al

Chicago-Kent Journal of Intellectual Property Law (Forthcoming)

47 Pages Posted: 2 Apr 2019 Last revised: 16 May 2019

See all articles by Peter S. Menell

Peter S. Menell

University of California, Berkeley - School of Law

Date Written: May 15, 2019

Abstract

Software patent cases often present dozens of claims requiring tremendous effort and years of costly litigation to reach a resolution. In a provocative essay, Judge William Alsup offers an innovative case management solution inspired by western frontier justice. As Judge Alsup warned attorneys in a recent case, tell your clients that “the day of reckoning is close at hand.”

Modeled after the famous “Shootout at the OK Corral,” the “Showdown at the N.D. C[orr]al” aims to streamline patent litigation by requiring the patentee to choose its “best” claim and the defendant to choose the “weakest” claim for an early summary judgment showdown. Judge Alsup emphasizes the potentially severe stakes: “injunction city” if the patentee prevails and “big” sanctions if the claims fail.

This article assesses whether Judge Alsup’s patent case management invention works for its intended purposes. Based on a review of the two showdowns to date, it concludes that the showdown procedure has yielded mixed results. The procedure, however, raises serious fairness concerns that could well lead to a bigger showdown at the Federal Circuit Corral.

Keywords: Patent, Case Management

Suggested Citation

Menell, Peter S., Patent Showdown at the N.D. C[orr]al (May 15, 2019). Chicago-Kent Journal of Intellectual Property Law (Forthcoming). Available at SSRN: https://ssrn.com/abstract=3350176

Peter S. Menell (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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