Read our latest coverage of patent law and intellectual property issues, from Silicon Valley to the U.S. Supreme Court.
Lutton recalled an egregious case last year in Delaware court dealing with a telecommunications patent. The opposing side’s summary judgment motions formed a several-foot-tall pile.
“We looked at the stack, and you could barely see over it,” she said. “Ours fit into a notebook. They didn’t at all attempt to excerpt what parts were relevant for the court. They included an entire deposition transcript. It was shocking.”
The Northern District has actually tried to head off needless quibbling and confusion for years with its local patent rules, put into force in 2001. The rules set clear timelines for discovery and force each side to state clearly and early what kind of evidence they want the other side to produce. The rules also tighten up the claims construction process.
These rules have helped, judges say, but � as often happens with rules � they’ve also given attorneys more to fight over. For instance, now people dispute whether a side followed the rules well enough.
“You get disputes of whether there was an adequate amount of disclosure, and we fight over that,” Judge Chen said.
So what are judges doing to cut through all the bickering?
Some judges force parties to limit their paperwork in their standing orders. Judges Jeffrey White, Phyllis Hamilton and Saundra Armstrong will allow only 10 language terms to be disputed during claims construction. And Chief Judge Vaughn Walker has attorneys write a letter asking permission every time they want to file a discovery motion, according to Edward Reines, a patent attorney with Weil, Gotshal & Manges.
Laporte says there are three important things that will always cut down on time, money and confusion � settlement, settlement and settlement. It’s not a weakness to be thinking about damages at the very start of your case, she said.
“Just always keep your eye on that ball � that simultaneous parallel track while you’re pursuing litigation,” Laporte said.
And if a client absolutely cannot settle, attorneys can do a couple other things to make things go a bit more smoothly, Whyte said: “Be professional and don’t play games.”
Oh, and narrow down your arguments!
After all, other kinds of cases, such as those with criminal charges, are high-stakes, too, and those attorneys pare down their arguments all the time, Spero said.
“I’m sure that if a criminal case lawyer can do that, then a patent lawyer can too.”
