Patent Litigation and Commercial Litigation + Trial
Recently Chief Judge Randall Rader of the U.S. Court of Appeals for Federal Circuit has encouraged U.S. district court judges to make a dramatic change in their management of patent infringement litigation. Judge Rader believes that instead of following tradition and leaving damages valuation toward the end, trial judges should get a realistic evaluation of damages early on -- during case management conferences or a little later in connection with Markman hearings. Getting a clear picture of both the defendant's exposure and the plaintiff's damages calculation will promote early and effective mediation or settlement, he suggests. According to litigators, Judge Rader's idea is gaining traction among district court judges. Our panelists will consider the many changes in litigation strategy that early damages discussions require for both the plaintiff and the defendant. For instance, there are situations in which specifics of early damages discussions could backfire later against infringement arguments. The new timetable requires changes in when lawyers call on economic experts and what they ask them to do. And, because those first economic analyses are likely to take place before discovery, experts will face the new challenge of having to rely solely on public data. The panel will also consider whether this change in proceedings will actually result in the hoped-for early resolution of many cases.
©1996-2019 Morrison & Foerster LLP. All rights reserved.