The biggest issue retailers – really all defendants – face in patent litigation is the cost of defense. The cost in dollars, distraction and lost time, is significant.  Because of that, trolls often set settlement demands based upon defense costs and defendants often settle instead of finding a defense, even a very strong one.  Of course, trolls use a string of cost of defense settlements as proof of the strength of these claims.  

Courts and litigants have long recognized this problem, but little has been done that actually streamlines or focuses patent litigation.  But over the last year or so, courts across the country have begun altering procedures to answer key factual or legal disputes early in an effort to reduce both costs and time spent on patent litigation.  Here are some key examples of ways courts have been attempting to streamline cases:

• Mini-Markman.  Chief Judge Davis in the E.D. Texas has invited parties to propose an early “mini”-Markman to decide a few case-dispositive terms at the outset of a case.  Judges in the N.D. Illinois (my home district) have also shown a willingness for early claim construction.  In some cases they are construing one or two key terms, and in others they are revising the Local Patent Rules schedule and deciding claim construction early, after little or no discovery.
• Early Summary Judgment.  Many judges such as Chief Judge Davis (E.D. Tex.) and Judge Kendall (N.D. Ill.) have allowed early summary judgment motions – often immediately after answering – to decide one or two key issues.  The premise is that deciding one or two core issues will focus or resolve cases.
• Early Settlement Mediation.  Many courts across the country are mandating early mediation or settlement conferences sometimes with limited discovery.
• Early 30(b)(6) Disposition.  Some courts are allowing an early 30(b)(6) deposition of each party to allow each party to better understand its own case and that of its opponent.  Of course, the early depositions allow for a later 30(b)(6) deposition when the case is more fully fleshed out.
• Early Contentions.  Many courts are allowing or even mandating early non-binding contentions like those required at the outset of a case by the N.D. Illinois.  As with early 30(b)(6) depositions, they are intended to help both sides understand their cases and their opponent’s cases better.  Anecdotally, I find initial contentions are driving earlier settlements in N.D. Illinois cases.  So, this may be powerful tool for streamlining cases.