In an article published in the Intellectual Property & Technology Law Journal, Partners Michael Summersgill and Amanda Major, Counsel Harry Hanson and Senior Associate Hannah Santasawatkul propose that courts should adopt local rules or standing scheduling orders that impose reasonable limits on patent claims and prior art, and a schedule by which such claims and art are narrowed.
Excerpt: “Particularly in cases brought by non-practicing entities (NPEs), discovery burdens and litigation costs in patent cases are not equal, usually falling disproportionally on defendants. Many NPE plaintiffs’ strategy of asserting an extraordinary number of patent claims – often many dozens or hundreds of claims – against a defendant, only to drop most of them shortly before trial, exacerbates this imbalance. This practice not only requires defendants to expend enormous resources unnecessarily developing non-infringement, invalidity, and other arguments for many patent claims that will never be tried, but also allows NPE plaintiffs to effectively ‘hide the ball’’ regarding the patent claims that they actually intend to pursue.”
