A recent Law Review article entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 NYU Law Rev. 286 (2013) (written by Arthur R. Miller who spent most of his career writing and thinking about the Federal Rules of Civil Procedure and the state of federal litigation in America) might well be mandatory reading for those who give full credit to the so-called patent reformers. Why? Because the attack on individual inventors using names like NPEs and patent trolls is nearly identical to the attacks previously waged by corporate America on personal injury lawyers, using the McDonald’s hot coffee case as an example of lawyer abuse (now it’s the Wi-Fi patent cases). Miller describes the McDonald’s case as being “grotesquely misdescribed” (p. 303), probably an understatement, just as the Wi-Fi case is misdescribed. See Setting the Record Straight on the Innovatio Patent Portfolio .
Like the corporate attacks on everything from the private enforcement of securities fraud claims to unfair business practice, civil rights and age discrimination claims, the new target is patent infringement claims brought by “boogie man” entities that don’t manufacture products. As Miller points out, these earlier attacks, like the NPE propaganda, are based upon slogans and propaganda, not empirical data and logic:
Bogus caseload statistics are propagated, while empirical data is ignored, and fears are spread by claims that there is a litigation explosion in this country and that Americans are paying a litigation tax that renders our businesses uncompetitive.
As for the frivolous-case mantra of the critics of inventor-driven patent litigation, frivolous cases are many times exactly what Miller found years ago — any case brought against a large firm client:
So, as a cub Reporter I spent several months going to bar association meetings and judicial conferences, asking people to talk to me about their experiences with abusive behavior and frivolous litigation so that I could aid the Committee in pursuing intelligent rule revision. Like Diogenes, the Greek philosopher, with a lamp searching for the truth about abuse and frivolity, I listened and listened and listened. In due course, I reported to the Committee that I had learned a great deal about these two litigation evils. I could tell them with considerable confidence that, according to the practicing bar, a frivolous lawsuit is any case brought against your client and litigation abuse is anything the opposing lawyer is doing.
(p. 361; emphasis added). So what is going on here in the patent arena is nothing new. There are fewer and fewer trials by jury (since juries allegedly can’t be trusted):
I am increasingly concerned about procedural changes that have resulted in the earlier and earlier disposition of litigation, often eviscerating a citizen’s opportunity for a meaningful adjudication on the merits of his or her grievance. Remember the image suggested earlier—the civil litigation gold standard—trial before a jury. Today, there are hardly any federal civil trials—let alone jury trials. Most courtrooms in federal courthouses are empty much of the time as judges try fewer and fewer cases. Indeed, a contemporary cliche refers to the “vanishing trial.” Cases simply do not survive until trial; they are settled or, increasingly, dismissed.
(p. 306-07). And, of course, there is more and more disposition (called “screening”) of cases through summary procedures:
Since judicial gatekeeping potentially requires screening every challenged expert, it represents another procedural obstacle, another motion, another hearing, and another potential issue on appeal, all causing more delay and expense. This, like other stop signs, plays into the hands of the billing-by-the-hour regime of the law firms that usually represent corporate and other economically powerful interests. It has precisely the opposite effect on contingent fee and public interest lawyers who must bear the increased cost and time investment without any assurance of reimbursement, let alone compensation.
(p. 313). The danger here, as Miller correctly points out, is to our fundamental rights as American citizens (rights the Founding Fathers fought hard to create):
Our aspirations should be those that our Founders embedded in the Constitution; that committed us to the rule of law; that prized the image of a level litigation field; and that motivated engraving “equal justice under law” above the entrance to the U.S. Supreme Court building. They should not be to impede meaningful citizen access to our justice system or to impair the enforcement of our public policies and constitutional principles by constructing a procedural Great Wall of China or Maginot Line around the courtrooms in our courthouses.
(p. 372). Armed with their procedural tools to blunt any effort at a trial on the merits — Rule 12(b)(6) motions to dismiss, summary judgment and Daubert motions — the patent defense bar has added yet another weapon to their arsenal: their clients are now the victims of evil trolls who only license and assert patents, rather than manufacture products in China that are imported into the United States. Do I sound a little cynical? Not really. When this is all over, I may spend my free time dropping by the unemployment office to read the latest news of lawyer layoffs at the big law firms and then to see if I can find some of my former adversaries standing in line. It might be where we are headed.