Patent jury trials reached their zenith in the mid-1990s. The stakes remain high, though the drama has faded.

Now, even if it’s called a trial, what you get is “some kind of hearing,” as Judge Henry Friendly once called it in his seminal lecture and law review article.

Some kind of hearing: That’s all you can expect in your case at law, especially in matters before administrative agencies.

The Patent Office is the new forum of choice

The U.S. Patent and Trademark Office (USPTO) is an administrative agency, as the Supreme Court reminded us in Zurko, and an exceedingly active and increasingly powerful agency at that.

Even if appealed, USPTO decisions will not be overturned lightly by the U.S. Court of Appeals for the Federal Circuit.

Meanwhile, in federal district courts, the jury trial, notwithstanding the Seventh Amendment, may be vanishing in well-marked rites of passage. The ABA Section of Litigation bemoaned the death of trials in a feature article more than a decade ago. Law professor Marc Galanter of the University of Wisconsin published an empirical study of the phenomenon at around the same time.

Local patent rules impose trial by ordeal

In patent cases, the widespread adoption of local patent rules has spared federal judges from having to deal with the substance of the case for a year or more, even while inflicting round upon round of “contentions” on the parties and counsel.

The theory is that the case will somehow become ready for trial in yet another year after the year of laboring in the land of contentions.

The reality is that the only trial most litigants will ever see is “trial by ordeal,” in the form of pleadings, discovery, motion practice, positioning and posturing.

It’s a long and winding road to deal with claim construction and validity before reaching the questions of infringement, damages, and injunctive relief.

It is not unusual for the parties to collapse in exhaustion and settle in desperation.

Few trials and fewer witnesses

Since the Supreme Court in Markman held that patent claim construction is a question of law to be decided by the court rather than a jury, patent cases have tended to be decided by summary judgment rather than by trial. Ironically, courts often hold Markman hearings, even though they are not required by Markman. At least they are “some kind of hearing,” even if limited to oral argument based on written submissions, effectively in lieu of trials.

In the U.S. International Trade Commission, at least some judges have required that parties submit their entire cases in the form of written testimony. This of course tends to wring the life out of patent cases, not that they’re exciting to begin with. Other judges eschew written testimony, assuming that it is written by lawyers and finding that it lacks any real value.

Some kind of patent trial

The newest form of denying conventional trials in patent cases is in post-grant review, commonly Inter Partes Review (IPR) under the America Invents Act (AIA) of 2011. Now, the challenger must present their entire case in chief on Day 1, in the form of a petition supported by evidence. See my article on IPRs. Nothing new (essentially) can be added by the challenger after the petition is filed. The Patent Trial and Appeal Board (PTAB) grants the petition by “instituting trial.” But again, the “trial” is almost all “on the papers.” Discovery is limited. Depositions are few. At the end, there is “some kind of hearing.” The presumption is that there will be no live witnesses. These cases move quickly, and they are decided quickly, typically within 18 months after filing of the petition.

Europe abandons conventional patent trials

Meanwhile, in Europe, a new Unified Patent Court is about to be launched, perhaps as soon as January 1, 2017. Its proceedings will be mostly on the papers. Just yesterday, Kevin Mooney of the U.K. firm Simmons & Simmons made an excellent presentation on this subject to the Intellectual Property Law Association of Chicago (IPLAC), thanks to leadership from Ken Adamo of Kirkland & Ellis.

3 tips for patent litigants and counsel

In sum, patent trials aren’t what they used to be. So what are patent litigants and counsel to do? Here are three tips:

  1. Prepare your case for trial. Know that the case you prepare for trial tends to settle favorably, whereas the case you try to settle, you might have to try. Avoid wasting effort and money on peripheral issues.
  2. Make the most of whatever hearing—whatever face time—might be granted to you by the decision-maker. You can say a lot in 30 minutes if you get straight to the point.
  3. Recognize that patent cases are all about technology and patent law, so don’t try to “dumb it down,” but do make it interesting—do tell the story—in written and oral presentations.

Your patent case will be decided fairly and without drama

The good news is that patent cases are being decided, and perhaps more efficiently than ever, by knowledgeable, competent judges. As my mentor Judge Edward S. Smith (Fed. Cir.) once told me, business people can deal with almost any decision rendered timely so they can conduct their businesses going forward. If it helps to be lucky, remember that luck favors the prepared.