The legal media is paying attention to the Eastern District's new Track B order. Today's Texas Lawbook has a short article on the topic Eastern District Facilitates Patent Cases with New Case Management Order by reporter Natalie Posgate. Natalie and I talked yesterday about the new order and I wanted to note a couple of things she quotes me on in the article that I think are worth calling out:
- Speed - the article states, and I think correctly, that "these new provisions could speed up patent cases to move along significantly in six months, versus the current year plus norm that it takes for cases to develop detail-wise." With respect to damages, this order places parties parties in a similar position after two months that might not otherwise reach for a year and a half, when damages expert reports are due.
- Cost-saving purposes - certain studies estimate that it costs parties $3 million on average to defend a patent case from beginning to end. Natalie reports ne as saying “[These provisions] would get you much further into the case for a much smaller amount. I think this could very easily allow you to defend a case for a fraction of what the statistics would say.”
Where Track B is used - either by agreement or by court order - I think it will have the practical effect of unchaining defendants in cases in which it applies from the costs of proceeding through discovery and claims construction - in fact all the way to expert reports - before they know what the amount at issue is. And as practitioners know - this isn't a theoretical problem. Ascertaining the damages that are being claimed in a patent case - to say nothing of what the law permits to be claimed or what the jury finds the case is actually worth - is a long and involved process under the existing structure. And not without reason in some cases, but still ...
If you're a close reader of the blog, this concept - damages discovery before liability - ought to sound familiar. I've previously called out Rachael Lamkin from California for her novel proposal for "reverse bifurcation" to avoid unnecessary costs in cases where damages are minimal. See Motion to Sever and “Reverse” Bifurcate . To briefly recap, once upon a time Rachael couldn't get a plaintiff to respond to her repeated attempts to contact them to let them know that her sales of the accused products were so low that the damages appeared to be $800-$2,500, even assuming infringement and validity. Unwilling to wait a year and a half or more for a damages expert report, she filed a motion to bifurcate the case asking that damages discovery preceded liability discovery. Very, very shortly after she filed the motion,. I noticed the plaintiff filed a motion to dismiss its claims against her client. This track is essentially built around that concept by front-loading crucial damages information ahead of claims construction or even invalidity disclosures, and specifically asking for such creative case-specific concepts at the status conference.
An important caveat here - Track B is not for everybody. The default, which is the heavily road-tested Track A, is going to be the right vehicle for many cases. But in the same way that sometimes you throw to Cole Beasley even when Dez Bryant is also running a route, sometimes Track B is going to be the right tool to get you across the goal line. And it doesn't even have funny-looking hair.
Man, I miss football already.