The Northern District has had a very good record of putting on substantive programming through its Practice Program. Yesterday's patent practice event, featuring Judges Jeremy Fogel and Susan Illston from the Northern District of California, Judge Leonard Davis from the Eastern District of Texas and Judge Sue Robinson from the District of Delaware was no exception.
The panel touched on a number of hot button patent litigation topics including: NPEs, transfer motions, parallel proceedings before the USPTO or USITC, case management in large multi-defendant cases and of course judicial pet peeves. It was a fast paced panel that really highlighted the different philosophies that different districts, and their judges, take to patent litigation. For example, Judge Davis expressed the perhaps unsurprising view that the Eastern District of Texas prefers resolution by trial, rather than by motion. He noted that this was not necessarily a pro-patentee philosophy and said that patent defendants had prevailed in 11 of 15 jury trials in 2013.
Some other highlights included:
Early resolution – All of the judges expressed interest in ways to avoid the costs of litigation by identifying issues for early resolution. Judge Illston encouraged litigants to try to come together to identify issues that could lead to early resolution in the initial CMC. She mentioned early claim construction on one or a few dispositive terms as an example. Judge Davis suggested that he could entertain early Section 101 motions if there was no claim construction issue complicating resolution of the motion.
Claim construction – Several judges expressed the view that oral argument was an important part of the claim construction process as it permits the judge to test constructions against the positions of the parties in real time. The judges expressed concerns about litigators that do not show "intellectual honesty" in their proposed constructions as well as litigators that misused court-issued constructions.
Sanctions – All of the judges agreed that sanctions under Section 285 are incredibly difficult to get, and the statute should not be viewed as a fee shifting statute for ordinary defense victories.
Trial Presentation – There was universal consensus that patent cases are hard in part because of how dense the material is and the amount of evidence that is produced in discovery. Trial lawyers need to focus on simplifying their case by limiting documentary evidence and dropping weak arguments.
Judge Fogel, who is no longer actively hearing cases and now focuses his time as Director of the Federal Judicial Center, also put in a plug for a new video on the Patent Office for use in IP trials.
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