Focusing Patent Litigation
13 Pages Posted: 29 Mar 2019 Last revised: 19 Jun 2019
Date Written: March 29, 2019
Patent litigation is often called the “sport of kings.” While that phrase may not be appropriate for all patent disputes, it is an apt description of the high-stakes cases. Attorneys in these lawsuits tend to zealously advocate for their respective sides by asserting every argument that they can legitimately raise. Patentees often assert an excessive number of patent claims and even pile on unnecessary patents. Some of these claims may be well-founded. But so long as they can make a colorable infringement argument, patentees typically include many weaker claims too. Likewise, patent defendants respond with burdensome and duplicative invalidity defenses. The accused infringers may also have sound invalidity defenses based on strong prior art. But typical defendants will assert mountains of far weaker prior art at the same time. Like the patentees, the only limiting principle is whether the defendant can make a colorable argument that is not sanctionable.
Naturally, these cases present a challenge to our already burdened court system. In his address for the 2018 Supreme Court IP review, Judge William Alsup described one technique, the “showdown” procedure; he has used to address these problems and force patent litigants to focus on the core issues of their dispute. This essay analyzes the showdown procedure and other similar procedures that were used in one of the most complex set of patent cases in history, In Re Katz Interactive Call Processing Patent Litigation. The common thread to these different approaches is that they do not just rely on sanctions. Instead, they are all designed to incentivize the parties to focus on the core issues in dispute and do away with their weaker arguments. Hopefully, this essay will help other courts narrow the issues in the complex patent cases on their docket.
Keywords: patent, civil procedure, case management
JEL Classification: K41, O34
Suggested Citation: Suggested Citation