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“Rocket docket” speeds patent infringement suits

As Wisconsin develops a national reputation for its emerging biotech industry, it's also developing another reputation: as a high-speed launch pad for intellectual property (IP) lawsuits.

Intellectual property and science, particularly biotechnology, go hand-in-hand. In the highly competitive science and technology community, patents, copyrights, and trade secret protection are essential tools used to protect discoveries and innovation. The science surrounding stem cells is a classic example, where landmark patents are held by the Wisconsin Alumni Research Foundation, an early and experienced player in the biotech and IP arenas.

In Wisconsin, a combination of savvy jurists and a university community with a penchant for incubating biotech start ups has nurtured the federal court in Madison to become a nationally known “rocket docket” for IP litigation, complete with brand-name litigants. Names such as Apple Computer, Google, and Microsoft are commonplace in the U.S. District Court for the Western District of Wisconsin.

Warp-speed justice

How fast is fast? In the world of IP litigation, lawsuits generally take years. Lawsuits launched from Madison's rocket docket progress at light speed by comparison, often settling in a few months or going to trial within about a year.
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The federal court in Madison, led by judges John Shabaz and Barbara Crabb, is a no-nonsense, do-business example of judicial efficiency. Trial conferences often start as early as 6:30 a.m. in Shabaz's courtroom and 7:30 a.m. in Crabb's. Participants who appear before either judge would do well to eat hearty breakfasts. Mornings are long, with lunch breaks often postponed, some as late as 2:30 p.m.

Never slaves to the 9 to 5 hours kept in some courts, Shabaz and Crabb abhor delays. Neither has a problem keeping attorneys - or jurors - until late into the night in the interest of judicial efficiency.

The accelerated pace of federal litigation in Madison frequently surprises defendants, who are under the gun to mount a catch-up defense from the moment a lawsuit is filed. Plaintiffs, on the other hand, have the built-in advantages of having as much time as needed to prepare their case before the court sets an aggressive schedule, as well as the advantage of surprise. Once a lawsuit is filed, the countdown to trial begins, a process that is far shorter in Madison than in other courts.

Nationally, patent infringement cases typically take two to three years. Patent cases filed in Madison have an average resolution time of six months, four days!

Trial dates in this court are firm. Discovery - an area often plagued by disputes and delays - must proceed quickly if the parties are to properly prepare for trial. Legal life on the rocket docket moves at warp speed, with few exceptions even for emergencies.

In one instance, a hearing continued while paramedics rushed to the courtroom to attend to a defendant who was suffering a mini-stroke. The judge later explained the proceedings continued because the conference was expected to last only 60 to 90 seconds, and the parties should not be “inconvenienced.”

Not really “homers”

The court is also favorable to plaintiffs trying to enforce their patents. In a recent survey of federal IP cases, PricewaterhouseCoopers examined 2,300 cases in federal courts around the country, then confirmed what successful IP attorneys already know: the Western District of Wisconsin is most favorable to plaintiffs, who have an overall “win rate” of 63 percent, which soars to 91 percent in cases that proceed past summary judgment.

Nationwide, plaintiffs win only 35 percent overall and 61 percent after summary judgment, making it easy to see why plaintiffs appear to be flocking to Madison.

Among the most recent plaintiffs hoping the Western District will prove fertile ground: Silicon Graphics. The company recently filed suit against ATI Technologies, alleging the popular maker of computer graphics chips infringed a computer graphics patent SGI has been licensing to ATI's competitors.

SGI filed suit just days after coming out of Chapter 11 bankruptcy protection. The complaint seeks unspecified damages and a trial by jury.

Although the court may be favored by plaintiffs, not every plaintiff wins, even when the company is home-grown. A case must have merit. The court recently ruled two Google products (AdSense and AutoLink) do not infringe on patents held by Madison-based HyperPhrase Technologies, LLC. In a 25-page ruling, Judge Shabaz wrote the AutoLink software “performs a completely different function in a different way to achieve a different result.” He was less kind to the claims against AdSense, calling them “nonsense.”

A similar suit brought by HyperPhrase against Microsoft relating to the Office XP software suite was dismissed by Judge Crabb in 2003. In a summary judgment ruling, the judge found there was no infringement because the Smart Tags in Office XP do not operate in the same way as inventions claimed by HyperPhrase.

Speed and toughness in the court is combined with deep judicial knowledge for the highly technical matters at hand, both scientific and legal. With 103 patent cases filed between 2000 and 2004 - not quite half the total number of IP cases filed in that period - both judges are experts on intellectual property, further speeding their efficiency.

The court is likely to continue attracting attention from innovative, IP-centric companies. As the volume of new science and technology grows exponentially, more IP challenges will occur, increasing the demand for more and faster litigation venues.

Turtle dockets

Two other federal courts, the Eastern Districts of Texas and Virginia, have similar reputations as fast-track jurisdictions, but even the three combined cannot provide a venue for all comers. The remainder of the federal court system is woefully behind where docket speed is concerned, and would do well to look to the Western District of Wisconsin for lessons in efficiency.

For that matter, so might the rest of the judicial landscape, in matters both civil and criminal. The wheels of justice grind slowly in many courts, but not in Madison, as any observer of a patent suit in the rocket docket well knows.

Previous IP Law articles

Joe Goode and Jonathan Fritz: eBay decision changes balance of power in patent disputes

Gina Carter: Intellectual Property: Are you an “infringer?”

Gina Carter: IP infringement - avoiding liability for officers & directors

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With patents, Wisconsin court gaining reputation as a "rocket docket"

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Gina Carter is the chair of the Intellectual Property Litigation practice at the Wisconsin law firm of Whyte Hirschboeck Dudeck and is resident in the firm's Madison office. She can be reached at gcarter@whdlaw.com.

The opinions expressed herein or statements made in the above column are solely those of the author, and do not necessarily reflect the views of Wisconsin Technology Network, LLC.

WTN accepts no legal liability or responsibility for any claims made or opinions expressed herein.

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