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Industry Leaders, Judges to Discuss Patent Litigation Reform


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: January 14, 2014 @ 8:00 am
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Phil Johnson (left) and Judge Michel (right) will be on the panel at this Sedona Conference. Shown here at the 2013 IPO Inventor of the Year ceremony.

Next Wednesday, The Sedona Conference will present a webinar that will take a look at an important, topical issue facing innovators – is legislative patent litigation reform necessary or can the Courts handle what some observe are abusive litigation tactics. On January 22, 2014, Patent Litigation Best Practices: A Matter for Congress or for Bench and Bar? will address the issue with an all-star faculty of leading practitioners in the field.  The faculty includes former Federal Circuit Chief Judge Paul R. Michel, as well as current Federal Circuit Judge Kathleen O’Malley.  Tina Chappell of Intel Corporation, Philip S. Johnson of Johnson & Johnson, and Alexander Rogers of Qualcomm will also offer their perspectives and insights as faculty members.

Patents and patent reform has been in the news, even the popular press, on an increasing basis. The issue of patents generally and patent litigation specifically has been the subject of intense debate over the last 8 years. Congress passed the America Invents Act (AIA) in 2011, with the bill being signed into law by President Obama on September 16, 2011. The overhaul of U.S. patent law was extraordinary, but not all of the parties involved were happy. Some thought the law went too far in some ways, others thought the law did not go far enough. Despite the AIA being the most significant change to patent laws since at least 1952, Congress is considering further reforms again, with the House of Representatives already passing the Innovation Act (HR 3309). Companion legislation in the Senate is likely to move forward during Q1 2014.

For the most part, the focus of currently pending patent reform legislation is centered on attempting to curb patent litigation abuses. Indeed, the interest on patent litigation abuse has so captured the attention of the industry that current Federal Circuit Chief Judge Randall Rader has spoken on the issue at length in various forums, and has authored an op-ed published by the New York Times. See also Judges Can Make Patent Trolls Pay.

The several pending bills in Congress that relate to this matter propose significant changes in patent litigation procedures.  These bills involve early claim construction, staying fact discovery until after claim construction, cost and fee shifting, heightened pleading standards, mandatory sanctions under Rule 11, and managing parallel proceedings between the federal courts and the U.S. Patent and Trademark Office.

Will this legislation impact only frivolous lawsuits brought by non-practicing entities as intended, or could it impact the value of all patents and ultimately discourage innovation?  What impact will H.R. 3309, if it were to ultimately become the law, have on the level of discretion federal judges can exercise in managing patent cases?  Will its effects be limited to patent litigation alone, or will they extend to all types of litigation?  Are the underlying legislative concerns better addressed by the Patent Pilot Program and the development of patent litigation best practices by those in the field? These important questions, and others, are being discussed in the community, and will be addressed by The Sedona Conference in its typically thorough, open and non-judgmental way.

In the keynote speech at the Intellectual Property Owner’s Association’s Annual Meeting (as reported on the IPO website here), Judge O’Malley eloquently framed these issues, stating: “Any encroachment upon the inherent authority of the courts to manage and control patent litigation could open the door to encroachment upon their authority to handle all litigation.  When you ask Congress to dictate, not just the scope and contours of patent law, but the way courts exercise their authority over individual cases before them, you break down the distinctions between the branches of government.”

This webinar was developed in conjunction with an introductory chapter for a Patent Litigation Best Practices document.  The Sedona Conference’s Working Group 10, with teams consisting of over 50 leading judges, in-house counsel and practitioners broadly representing all stakeholders involved in patent litigation (“WG10”) began drafting this chapter last summer and plans to publish later this year.  The goal of this endeavor is to use these discussions to reach consensus in order to carry out the mission of “moving the law forward in a reasoned and just waySM.” This is an excellent opportunity to get involved. The panel will take questions by text and telephone during the program.

If you are interested in attending this webinar  please click here. Free registrations are available to courts, government agencies, and law schools on a first-come, first-serve basis.  To receive a discount code email igg@sedonaconference.org.

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Posted in: Gene Quinn, IP News, IPWatchdog.com Articles, Patent Litigation, Patent Reform, Patent Trolls, Patents

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

2 comments
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  1. Sounds like an excellent webinar for getting up-to-speed with all the developments in patent litigation. Glad to hear that you have so many professionals collaborating on it.

  2. I would like to see “Patent Litigation Best Practices: A Matter for Congress or for Bench and Bar?” consider a limitation on e-discovery requests. For example, limiting a litigant’s options to only 5 search terms in an e-discovery request for production will force parties to carefully consider precise search terms. This will prevent parties from including many search terms with little thought, abusing the discovery process and increasing the expense for parties who are not as wealthy.