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What we have here is a failure to communicate.... (love Cool Hand Luke). I do not believe that all entities have a "right to a trial." Completely meritless, untenable cases get filed all of the time and should be dealt with swiftly and harshly. I also have experienced litigation misconduct a shocking numer of times. And it is up to us, the IP/Patent Bar, to find solutions...
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Reverse bifurcation will not work in all instances, of course. In this case the strategy was to highlight that there was no real money on the table, absent extortion. (The point re: the need for a Markman is well-taken though in many cases, but not all, counsel for both sides knows how that will likely play out.) The tactic is but one arrow in the quiver. We need to creatively, courageously, help judges to find ways to manage these cases and even "level the playing field" as Judge Davis says. Hopefully, The Merges/Crouch paper gives us more strategies, and in suspect it does (pulling it next). We cannot lament "trolls" or the current label for any person engaged in disfavored litigation conduct. We must outsmart them. (gets off soapbox)
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Excellent suggestion re: discovery from DC. Seems exactly the solution. Unfortunately, this decision will wrongly and prematurely end several counterclaims against a patentee who is surely a rotten apple. And, (Over)protection of patentees seems misplaced in this era.
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May 25, 2011