The highlight of the closing afternoon of the bench/bar in Plano was the keynote address by Chief Judge Randall Rader of the Federal Circuit Cort of Appeal. I have summarized Judge Rader's talk below, but a copy of his remarks is attached here and I commend it to you - Download Rader 2013 ED Tex B&B Speech
Fresh from a rousing evening providing the entertainment last night, Judge Rader started his speech with an Eastern District-specific version of "Deep in the Heart of Texas". He then gave a talk on what he described as two topics: patent law and litigation abuse. Judge Rader postulated that there is a crisis of confidence in the patent system that is driven by litigation abuse. He said that when it comes to litigation abuse it should not matter what kind or size of entity is at issue - what matters is whether the party has done something wrong. His speech was stopped by applause when he said that the judicial remedy is the right one - judges are best-equipped to recognize blameworthy conduct.
The talk addressed three keys to solving litigation abuse:
- Summary judgment - don't use it for strategic advantage, i.e. just to keep the other side busy. Help the courts - which have limited resources - by using it with discretion to identify cases that lack merit as opposed to cases that deserve a trial.
- Fee reversal - Judge Rader advocated for more discretion for district judges to determine when a case is exceptional so that cases without merit could satisfy the standard under 35 USC 285. This might come in the form of new CAFC caselaw or action by the Supreme Court on the two cases cert has been granted on.
- Litigation expense reforms - Judge Rader emphasized that the cost of litigation is what drives abuse, and was highly complimentary of ED Tex CJ Davis' leadership in reducing unnecessary expense, including the e-discovery order and as of this morning a new local model order on claim and prior art reductions, in line with the recent FCAC model order.
Judge Rader's remarks concluded with a call for the bar to help solve the current crisis of confidence in the patent system by working with the bench to address litigation abuse through judicial action, as opposed to legislative action. "We only can do it if you're in it with us," he told the assembled attendees. "We're in this together".