I wanted to write about the comments from the patent judge panel based on my experience as a law clerk. Though I did not handle patent matters working as a law clerk to a state court judge many of the issues raised by this morning’s first panel are not isolated to federal court patent cases.
The first point that the panel touched upon was knowing the local rules of the court. The panelists encouraged attorneys to research the districts and learn the relevant rules before initiating suit. Many attorneys, particularly civil litigators are rarely in the court room. Investing time before initiating suit can help attorneys maintain credibility with the court.
The second point raised and became a theme throughout the panel’s discussion was trial efficiency. Magistrate Boland made the point that while judges are serving lifetime appointments, they place a great emphasis on docket management. How does that impact the litigator? Well, as Judges Yeakel and Huff stated, they are loathe to grant stays. When seeking a stay in proceedings, the panel concurred, anticipate that judges will want to know how the stay will effect the case’s timeline. An effective brief will address the court’s docket management concerns.
Third, is the letter “e.” E-filing and E-discovery. The move from paper to electronic filing of pleadings has dramatically increased the volume and quantity of filings. Patent cases, in particular, involve voluminous amounts of information. Judges, and the magistrates who handle discovery motions, are challenged by the costs in terms of time and real dollars of managing the amount of digitized information now available for parties. The panel encouraged litigants to provide more facts in discovery motions. Why is this request relevant or likely to lead to relevant information? Why not?
Last, the panel discussed the settlement process. Most cases settle, but the timing of settlement often leads to few winners. Often, settlement only occurs far along into the litigation of the case, after large sums have been spent on discovery, motions, and experts. The panel cited statistics that indicated the parties to a patent litigation spend an average of $5.5 million in litigating their case. The average settlement value in patent cases is $500,000. Alternatively, when cases are seen through verdict, the average award in a patent case is approximately $9 million and the largest verdict in the state of Colorado came in a patent dispute. Parties should consider settlement options far earlier in the process to reduce costs to clients.
