Best Practices in Patent Litigation Survey

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5/3/2013
1
Best Practices in Patent
Litigation Survey
Professor Colleen Chien
colleenchien@gmail.com
Co-presented with Wes...

5/3/2013
2
These changes have led to efforts to “fix” the patent
system
Decisions
Laws, Hearings, Bills
Model Rules,
Sel...

5/3/2013
3
In Today’s Presentation, we will …
1. Describe what we did
2. Summarize what people said
3. Invite Conversation...

5/3/2013
4
The Surveys
Objective
How goes? What does or doesn’t work?
Process
Develop questions with judges and in‐house c...

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5/3/2013
5
What is impact of PAE suits
PAEs can have significant operational impacts

5/3/2013
6
82% said their customers got PAE demands for
using or implementing their products
68%
15% 18%
0%
20%
40%
60%
8...

5/3/2013
7
Model e‐Discovery Order
The Problem: Discovery is expensive and wasteful
The Fix: the Federal Circuit Advisory ...

5/3/2013
8
Damages Reform
The Problem: Damage figures are guestimates
The Fix: Reform damages law– require sound evidence ...

5/3/2013
9
Case management
The Problem: patent cases are complex and unwieldy, and judges are
swamped
The Fix: manage the...

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5/3/2013
10
Does case management work?
Yes, much more so than other interventions.
76%
71%
54%
44%
72%
30%
46%
52%
0%
20%...

5/3/2013
11
Why timing matters
Reforms that target the beginning stages of
litigation (e.g. early dispositive, stays) are...

5/3/2013
12
Other Feedback …
Mediation: 4% very effective, 48% ineffective
“As a member of a court mediation panel, it pai...

5/3/2013
13
Will Legislative Fixes Work? Maybe
64%
57%
53% 53%
42%
0%
20%
40%
60%
80%
Fee-shifting to
Prevailing
Parties
F...

5/3/2013
14
NB: “Reforms that target the beginning stages
of litigation are more effective”
64%
57%
53% 53%
42%
0%
20%
40...

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5/3/2013
15
Questions for Clients
1. Who’s Responsible for Case Budgeting
and Overruns
2. Selection of Counsel in Patent...

5/3/2013
16
Questions for District Courts (Judges and
Magistrates)
1. Patent Cases versus Other Complex
Litigation
2. Pr...

5/3/2013
18
The CAFC model order: custodian and email
limits matter the most
Discovery: who oversees what

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