Judge Rader’s remarks have been circulated in their entirety by several media outlets; however, a few observations are worth noting with regard to how Judge Rader proposes to improve patent litigation.

• Discovery Management/Control. Judge Rader emphasized the need for increased discovery management in order to control costs and encourage efficiency, particularly with respect to electronic discovery. He circulated and discussed a Model Order related to electronic discovery proposed by the Advisory Council for the Federal Circuit. This Model Order provides for the exchange of traditional evidence on accused products and then email discovery could occur with respect to 5 custodians and 5 search terms per custodian. These limits could be exceeded at the requesting party’s own expense (i.e., cost-shifting).

• Summary Judgment. Judge Rader believes that summary judgment may be a tool to clear the congested patent docket, and he encouraged the bar to work with the court to determine if there are 1-2 summary judgments per each case that might be properly brought to end litigation before a trial occurs.

• Transfer Motions. Judge Rader indicated that the new Patent Pilot Program might provide an opportunity for the court and the bar to evaluate venues that could be convenient to the parties. He suggested that a court’s participation in the Patent Pilot Program may become a factor to consider in venue analysis, but it is still up in the air as to how much weight participation in the Program may carry in the venue analysis.

• Early Valuation. Judge Rader noted that not all patents and patent cases are created equal. If the court and the parties can identify the economic value of a case early on, then the timing and procedures for the case may be properly tailored.

Overall, Judge Rader believes that we need to ensure that patent law fosters innovation and the courts should be used for the pursuit of justice. By making improvements to the patent litigation system, Judge Rader believes that the playing field may be more equalized for plaintiffs and defendants going forward. Now it is up to the courts and the patent bar to continue the discussion about the challenges and steps to implementation of some of Chief Judge Rader’s proposals.

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©2012 Snipe Hunting in the NDTX. All Rights Reserved.

In Mavrix Photo Inc. v. Brand Technologies Inc. (09-56134), the appellate panel agreed that Brand’s contacts with California could not confer general jurisdiction; however, there were sufficient minimum contacts with the state arising out of, or related to, its actions in posting a series of copyright-protected photos belonging to Mavrix to justify the exercise of specific jurisdiction. Brand’s website was deemed to be a popular website with a specific focus on the California-centered celebrity and entertainment industries. The decision emphasized that Brand made money by selling advertising space on its website to third-party advertisers who target California residents. Given the Brand website subject matter and the size/value of the California market to Brand, it was reasonable that Brand “anticipated, desired, and achieved a substantial California viewer base” to justify an exercise of specific jurisdiction.

In CollegeSource, Inc. v. AcademyOne, Inc. (09-56528), CollegeSource accused AcademyOne of having wrongfully reproduced 680 catalogs from its digital collection of 44,000 course catalogs from 3,000 colleges and universities on its websites. The appellate panel found that specific jurisdiction was justified. CollegeSource and AcademyOne were direct competitors in a relatively small industry, and AcademyOne would have known of CollegeSource’s California place of business. AcademyOne downloaded the catalogs and reproduced them on its websites, and these acts were targeted at California, where CollegeSource was based.

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©2012 Snipe Hunting in the NDTX. All Rights Reserved.