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Matching Procedures with Goals

Matching Procedures with Goals. C. Graham Gerst 312.241.1504 ggerst@giplg.com. Potential Goals of Small Claims Patent Court. I ntroduction. Eliminate strategy of patent suits brought for nuisance value Provide venue for enforcement of lower value IP. Nature of Patent Nuisance Suits.

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Matching Procedures with Goals

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  1. Matching Procedures with Goals C. Graham Gerst 312.241.1504 ggerst@giplg.com

  2. Potential Goals of Small Claims Patent Court Introduction • Eliminate strategy of patent suits brought for nuisance value • Provide venue for enforcement of lower value IP

  3. Nature of Patent Nuisance Suits Patent Nuisance Suits • Patent infringement claim (often based on weak infringement claim/likely invalid patent) to leverage cost of patent litigation for settlement • Nature of U.S. legal system • Nature of patent cases • Lessening problem? • Baby/bathwater problem

  4. Small Claims Court to Deal with Patent Nuisance Suits? Patent Nuisance Suits • Challenge 1: Plaintiff strategy • Respond with procedures/incentives to entice plaintiffs? • Challenge 2: U.S. Constitution (7th Amendment) • Cumbersome, difficult, and expensive to replicate • Almost impossible to force plaintiffs into that forum against their will

  5. Landscape Facing Meritorious Enforcers Inexpensive Venue for Enforcement • Expenses of assertion ($3-$10 million) • Even with contingency counsel, must fund experts • Damages law (and expense) • Lack of injunctions, even against competitors • Problem for U.S. economy

  6. Potential Solution Inexpensive Venue for Enforcement • Pilot program, single location, but accessible from around the country • Limited funding • Chance to experiment • Consent needed • Which cases? • Selection by plaintiff, but both parties must consent • No injunctions • Some limitation on damages available • Past damages versus going forward • Monetary amount • Evidentiary rule at district court

  7. Streamline Process to Lower Cost Inexpensive Venue for Enforcement • Specialized ALJs (consent needed) • Require involvement by lawyers – gatekeeper function • Extremely limited discovery – mandatory disclosures, with some discretion for additional written discovery • No e-discovery • Limit discovery of experts, loosen who is acceptable • No mandatory mediation • No multi-defendant suits • Shortened time for trial, with some discretion for ALJ • Appeal – need some second bite, but lots of deference • Enforcement of judgment by district court (a la arbitrations)

  8. Matching Procedures with Goals C. Graham Gerst 312.241.1504 ggerst@giplg.com

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