I have written in the past (November 15, 2010) about how using EBrief technology can improve your changes of a favorable ruling during a Markman hearing. EBrief technology is advantageous because they provide immediate, hyperlinked access to the complex material that you have prepared for the court. Providing the court with an electronically linked set of documents and demonstratives that is fully text searchable assures you that the Judge can re-access the key information you have emphasized during the hearing. They can help move the process forward on an expedited basis.
US District Court Judge Leonard Davis of the Eastern District of Texas is employing an additional tool to help expedite patent cases. He has begun to set early claims-construction hearings in some patent cases that some are calling “Mini-Markmans”. A full Markman hearing is a crucial and often time consuming part of a patent infringement suit wherein the judge interprets the patent claim as a matter of law. The goal of the Markman is to define the scope of the patent rights by the holder. Then the court can make a determination during the trial as to whether or to what extent the patent has veen violated.
Patent litigation is further complicated when there are a large number of defendants involved in the claim, especially if the plaintiff is seeking a nominal settlement from each defendant. When defendants argue that a few claims-construction issues could dispose of the cases, Judge Davis asks the parties to focus on the key issues early in the suite and provide short briefing statements of explanation.
The goal, according to Judge Davis is to level the playing field where the defendant’s choice is often to “pay a little money to settle the case(s) or pay a lot to undergo a full trial and be vindicated. By focusing an early Markman hearing on the key issues in the case, it can provide valuable insights to the defense about which strategy makes sense in the long term.
Since the Eastern District of Texas are extremely popular with patent litigations due to both firm scheduling rules (read expedited) and the expertise of the bench in handling complicated patent case, Judge Davis is trying to remove any advantage a litigant seeks by filing under the courts streamlined patent process. He does not want the court rules used to force settlements on defendants without exposure of the viability of the top construction claims in question. By providing a forum early in the case to brief the major issues in the case, both sides in a patent case are forced to reveal important information about their position which can then be evaluated by the sides in determining a case strategy moving forward.
Combining Judge Davis’s approach to early claims briefs and summary judgment motions, along with a complete hyperlinked presentation system (EBriefs) will allow parties to obtain the best of all worlds; an effective early argument focused on the key points in question presented in manner that makes it easy for the court to understand the claims. The combination will help parties make the correct litigation strategy decisions before years of litigation and untold sums of money are spent.
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