Professors John Allison (University of Texas at Austin McCombs business school), Mark Lemley (Stanford), and David Schwartz (Chicago-Kent) have published an interesting article looking at empirical patent litigation data for cases filed in 2008 or 2009 as compared to similar data for cases filed in 1998-99 — Understanding the Realities of Modern Patent Litigation.
Patent Litigation Tips
Benefits Of Parallel District Court Litigation and Patent Office Review
By R. David Donoghue on
Posted in Patent Litigation Tips
I wrote this article for IP Law360. I am cross-posting it here with permission — thank you Law360 — because inter partes review (“IPR”) is increasingly a valuable strategy for retailers, just like all patent litigation defendants.
Inter partes review has become a popular, powerful tool for patent defendants. In many cases, it allows…
Potential Duty to Disclose Related Inter Partes Review to the District Court
By R. David Donoghue on
Posted in Patent Litigation Tips
Along with Covered Business Method patent review (“CBM”) and Post-Grant Review (“PGR”) to a much lesser degree, Inter Partes Review (“IPR”) has become a powerful tool for retailers fighting patent trolls. One of the key benefits of IPRs is that courts routinely, although not always, stay district court litigation pending the IPR’s outcome. But earlier …
Patent Reform: Patent Office Reaches Out to Troll Targets
By R. David Donoghue on
Posted in Patent Litigation Tips
As a step in carrying out President Obama’s effort to curb abusive patent troll litigation, the Patent Office has created a valuable resource center for targets of patent troll suits and demand letters, although they refer to it as “abusive patent litigation.” The site has considerable value for retailers, both those facing their first…
E.D. Texas Adopts Model Order Limiting Asserted Claims & Prior Art References
By R. David Donoghue on
Posted in Patent Litigation Tips, Patent Trolls
The biggest news out of the E.D. Texas Bench Bar Conference from last week appears to be that the Court has entered a Model Order Focusing Patent Claims and Prior Art to Reduce Costs. The Model Order, based on the Federal Circuit model order with some important differences, is important for retailers who routinely…
Is Bifurcation of Damages Back?
By R. David Donoghue on
Posted in Patent Litigation Tips
Bifurcation of liability and damages — perhaps even trifurcation of infringement, invalidity/inequitable conduct, and damages — may be coming back as a common case control tool of district courts, as well as a cost-containment tool for retailers, and defendants generally. In Bosch v. Pylon Manufacturing, Slip Op. (Fed. Cir. June 18, 2013), the Federal …
2013 PWC Patent Litigation Study: More (and More) of the Same
By R. David Donoghue on
Posted in Patent Litigation Tips
PWC has published the latest installment in its excellent yearly patent litigation survey. This year’s survey looks at data for every year from 1995 through 2012. And once again this year’s survey focuses even more on the dichotomy between NPEs and practicing entities. I use the term “NPE” because the PWC study includes non-practicing entities …
E.D. Texas Federal Court Practice Judicial Roundtable
By R. David Donoghue on
Posted in Patent Litigation Tips
Friend and colleague Michael Smith, who writes the excellent and authoritative E.D. Texas Practice Blog, tipped me off to a Texas Lawyer roundtable on Texas patent litigation procedure. In addition to several Northern District of Texas judges (which are not nearly as relevant to retailers), Eastern District of Texas Judge Rodney Gilstrap and Magistrate …
Customer Suit Exception as a Patent Troll Solution
By R. David Donoghue on
Posted in Patent Litigation Tips
Santa Clara Law Professor Brian Love and Wilson Sonsini partner James Yoon have written a thought-provoking article (slated for publication in the Boston University Law Review) arguing for the expansion of the customer suit exception as a mechanism to limit the disparate impact of patent litigation. First, they identify the myriad problems with suing customers/end …
Patent Small Claims: Has the Time Come?
By R. David Donoghue on
Posted in Patent Litigation Tips
The Executive Branch has undertaken a number of initiatives to identify solutions to the US patent problems. One of the (obvious) focuses is on patent trolls – DOJ/FTC PAE Seminar. One of the newest initiatives is the possibility of a patent small claims court. Last month, the PTO sought public comment on the potential value …