The Central District’s New Patent Litigation Pilot Program
“Litigation follows the wealth,” commented the Hon. Andrew Guilford on a panel of judges at the recent Los Angeles County Bar Association program, “New Patent Litigation Pilot Program in the Central District of California: What Every Patent Litigator Needs to Know.” Along with Judge Guilford, the Hon. Otis D. Wright, the Hon. George H. Wu, and the Hon. S. James Otero were the panelists at this well-attended and very engaging program. Judge Guilford added that intellectual property (IP) reflects the economy’s future. He illustrated his point by noting that a few years ago, there was a lot of real estate litigation; then, there was financial-services litigation, and now there is IP litigation—so litigation follows the money and is definitely on the rise.
With an eye toward helping Central District judges handle this increase in IP cases— which represents about 4 percent of their dockets—as intelligently and expeditiously as possible, the District launched this patent litigation pilot program on September 19, 2011. Now, within 30 days of a case filing, judges can reassign newly filed cases to this panel if they involve a patent issue.
During the discussion, the judges acknowledged that they are not patent experts and not Federal Circuit judges. So, they need lawyers’ time and expertise to get them to the level of the proficiency in the federal system as they address IP litigation.
The panelists also noted that 18 districts have adopted local patent rules, and that 12 have adopted them within the last three years. Citing a Law360 article, Judge Otero commented that there is a lot of forum shopping because of the way the rules are structured in different districts. Currently, the Central District does not have local patent rules. When asked how many attorneys in the audience would like local patent rules in the Central District, a majority of the group raised their hands.
Additionally, the panel addressed the issue of damages and how judges act as gatekeepers in this regard. Because more cases settle before going to trial, attorneys have fewer opportunities to hone their cross-examination skills. The judges acknowledged that if attorneys were better at cross-examination, they’d be making points about damages and their value during the cross-exam. However, because lawyers are not as skilled in this area, the onus is increasingly on judges to lead the discourse. For instance, it is less up to judges to say that the discount rate you’re using is really ridiculous. Whereas they’re really thinking that recognizing and making this point is what a skilled attorney would do.
Judge Guilford pondered who was the best expert with respect to damages — an economist or a CPA. In his view, selecting the expert is outcome determinative — as soon as the judge approves the expert, the case is done. He wants an expert who will call it right down the middle. An audience member who was both an economist and CPA commented that an attorney experienced in cross-examining witnesses should draw out the story well enough so that the jury can make a decision.
The kind of experts Judge Wright prefers are true experts who have devoted their lives to that particular subject and published on the subject. For example, mention a treatise at trial and bring in the author as the expert — that’s heavy duty credibility in his eyes. He eschews “hired guns” who will testify to whatever their paying clients want.
The judges concluded the forum by offering practice pointers from their perspective:
- Be brief. Consider how you can best communicate with the judge and jury. Build themes and coalesce and simplify messages.
- Retain trust. One panelist sees many attorneys lose a judge’s trust by overreaching or making outrageous claims. He emphasized how critical it is to protect one’s credibility. Judge Wu added that full disclosure is also part of credibility. For instance, if you lack information, acknowledge it.
- Be transparent. Judge Otero described an attorney who impressed him when he said, “Here’s a brief and here’s the law that supports it, but I really want you to be aware there’s this one decision that goes against this.” Judge Otero said he has never forgotten that attorney, who, through his honesty, built credibility and trust.
- Be courteous to court staff. Court staff is an extension of a judge and will tell him or her their impressions of attorneys; this, too, affects trust and credibility.
- Keep everything simple. Because these judges are not on the Federal Circuit, they don’t have that level of expertise. Therefore, simple is best.
It was clear that the audience found this seminar as engrossing as I did. The panelists offered insights that many in the audience hadn’t considered before and information that will benefit them as they move forward in their work.