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Jason Schwent publishes article in Bloomberg BNA patent journal

January 29, 2013

Intellectual property partner Jason Schwent has published an article in the Patent, Trademark & Copyright Journal, a publication of Bloomberg BNA.

The article, “Patent Poker: Why Forcing a Plaintiff to Show Its Hand Early Can Lead to Fairer Play,” tackles the problem of so-called patent troll litigation. In the article, Schwent compares litigation with patent assertion entities (or, PAEs) to a high-stakes game of poker.

“But unlike other games, patent litigation, especially where PAEs are involved, is a no-win proposition for those accused of infringement,” Schwent writes. “That’s because PAE litigation suffers from a severe imbalance among those playing — an imbalance in costs, in the relevant risks, and in access to information. Without balance, accused infringers face a situation where it is often far cheaper to fold and settle a claim of infringement (even where allegations are meritless) than to ante up and fight.”

Still, Schwent argues the system is not irretrievably broken, and offers a possible solution. By adopting a few simple rule changes, courts can equalize the litigation burden on both sides and focus the parties immediately on the key issues — a practice that should translate to streamlined litigation and lower overall costs, he writes.

He suggests the following changes to local patent rules:

  1. In the Complaint, plaintiff would identify the claims being asserted.
  2. In connection with the exchange of information contemplated by Fed. R. Civ. P. 26(a)(1), each of the parties would provide a list of claim terms they believe need to be construed.
  3. Thirty days after receiving the list of terms with the Rule 26(a)(1) disclosures, plaintiff would produce its proposed claim constructions.

These changes wouldn’t impose an extraordinary burden on plaintiffs, Schwent writes. Patent holders have, or should have, all the tools necessary to definitively interpret the claims of any patent they assert.

He also argues that to give teeth to the possible rule changes, courts must make these early disclosures binding.

Schwent’s article appears in the Jan. 25 edition of the BNA’s Patent, Trademark & Copyright Journal.