Hon. Jeff Kaplan, U.S. Magistrate Judge in the Northern District of Texas, Dallas Division, participated in a judges panel at the State Bar of Texas 7th Annual Advanced Patent Litigation course in San Antonio on July 14, 2011. Judge Kaplan addressed several subjects of interest:

Patent Pilot Program. Judge Kaplan touched on how the judges of the Northern District are excited about being part of the Patent Pilot Program. The patent docket in the N.D. Texas is steadily increasing, and they hope to see more filings. Judges Linn, Godbey and Kinkeade of the Dallas Division will be part of the Pilot Program, and they hope that the other judges of the Northern District will pass their patent cases to them as they are entitled to do in the Program. Judge Kaplan also anticipates that the judges in the Patent Pilot Program will adhere to the Patent Rules and conduct patent cases in a somewhat uniform manner.

Daubert Challenges. Judge Kaplan noted that Daubert challenges are becoming too common. Attorneys need to be careful about the number and type of points made in Daubert motions. Judge Kaplan described how he now holds a pre-Daubert motion conference to confirm which experts may testify at trial to more effectively narrow the amount and scope of expert testimony and informally examine the possible challenges. Judge Kaplan thinks this pre-Daubert motion conference may cause parties to think twice before filing Daubert motions.

Damages. Judge Kaplan discussed the need for patent trial attorneys to appreciate and master the art of proving damages. He suggested that patent attorneys seek out successful plaintiff’s attorneys for advice on proving damages effectively.

Trial. Judge Kaplan observed that attorneys are often too repetitive at trial.

Summary Judgment. Judge Kaplan noted that the summary judgment record in patent cases is often too long and includes much more than is necessary for the court to fully consider the motion. Do not bury important information in an overly long record – by doing so, parties run the risk of that information not being fully considered or that information may be obscured by less pertinent information.

Thanks to Magistrate Judge Kaplan as well as Hon. Lee Yeakel (Western District of Texas), Hon. Ron Clark (Eastern District of Texas), and Hon. Andrew S. Hanen (Southern District of Texas) for their participation in this interesting panel.

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