I’m a patent trial lawyer. My goal in every case is to win at trial. As for settlement, I believe in the wisdom of my fellow trial lawyers:
The case you try to settle, you will try;
the case you prepare to try, settles.
In the end, whether we try the case or settle it, the work invested in smart preparation pays off.
I. Most Patent Cases Settle Before Trial
Over 98% of all civil cases are resolved short of trial, sometimes by motion, more often by settlement. The Vanishing Trial, 30 Litigation J., No. 2 (Winter 2004). It would seem that the trial lawyer has written her own epitaph.
We live in the age of the litigator who deals in e-mail demands and discovery motions. Scant attention is paid to technical issues on which patent cases turn. “It’s too complicated for the jury,” rationalizes the litigator.
Local patent rules aim to get cases “ready for trial” in two years, but it may take three years or more to actually get to trial. Many a case collapses under its own weight. The litigator might be relieved. The client, left with an unsatisfactory settlement and a big bill, might wonder if there is a better way.
II. It’s Essential to Prepare for Trial
“Never, ever, ever, be afraid to take a case to trial,” says Kara Cenar of Bryan Cave. If the other side won’t give you full value for your case, you have no choice but to say, “Let’s go to trial.” To be in a position to say that, you have to begin preparing for trial from the day you’re engaged. You have to know how to try a case. Bluffs seldom work in poker or patents.
Never, ever, ever, be afraid to take a case to trial. – Kara Cenar
Gone are the days when a patent and its technology could be summarized with a sweep of the hand. Legal developments from Markman, 517 U.S. 370 (1996), to the America Invents Act, P.L. 112-29 (2011), to Alice, 134 S. Ct. 2347 (2014), require the courts to delve deeply into the technology at the heart of a patent case. Markman requires courts and lawyers to deal with technical claims. The America Invents Act has made the Patent Office the busiest trial court in the nation, with Patent Judges who are unafraid of patents and technology. In Alice, the Supreme Court insists on knowing how technology is applied and whether “something more” is added to what is already known. If it was ever a good idea to “dumb down” a patent case—to avoid the technical issues—that approach just won’t fly anymore.
This week, my colleagues and I are teaching an intensive IP/patent trial advocacy class at Illinois Institute of Technology (IIT) Chicago-Kent College of Law, complete with opening statements, direct and cross-examination, evidence, and closing arguments. Our goal is to help future trial lawyers present patent cases in ways that are understandable and persuasive to judges and juries.
When you have a patent case, entrust it to a patent trial lawyer. If your goal is early, favorable settlement, the best way to reach that goal is to have your lawyer prepare the case for trial. In the end, whether your case settles or goes to trial, skillful preparation will put you in the best position to win.