A patent small claims court – what do you think?

By Jason Rantanen

The Administrative Conference of the United States (ACUS) is an independent federal agency that’s charged with recommending improvements to administrative process and procedure.  The position of Chairman is currently vacant, so the Vice-Chairman, Matthew Lee Wiener, is serving as Acting Chair. A key aspect of ACUS is soliciting  input from the public.

ACUS is conducting a study on behalf of the USPTO to examine “issues associated with and options for designing a small claims patent court.”  It recently published a request for public comments on the idea of a small claims patent court.  From the notice in the Federal Register:

Since at least the late 1980s, concerns have been raised that the high cost of
patent litigation deters small- and medium-sized enterprises, including
those owned by traditionally underrepresented groups, from seeking
to enforce their patents. Policymakers, scholars, and organizations have studied
whether a small-claims procedure is needed for resolving patent disputes.

They have reached different conclusions and proposed different actions.
The Department of Commerce has also considered the possibility of a
small claims patent court. Most recently, in December 2012, the USPTO
issued a Federal Register notice requesting public comment on ‘‘whether
the United States should develop a small claims proceeding for patent
enforcement’’ (77 FR 74830 (Dec. 18, 2012)).

Given ongoing interest in the topic, USPTO has engaged ACUS to conduct
an independent survey and analysis of issues associated with and options to
consider in designing a small claims patent court. A report resulting from the
study will ultimately be submitted to Congress and will address, among other
topics, whether there is a need for a small claims patent court, the feasibility
and potential structure of such a court, and the relevant legal, policy, and
practical considerations in establishing a small claims patent court.

Although ACUS is seeking all comments on the topic, they’ve specifically pointed out these areas of interest:

1. Whether there is need for a small claims patent court;

2. The policy and practical considerations in establishing a small
claims patent court;

3. The institutional placement, structure, and internal organization of a
potential small claims patent court, including whether it should be
established within the Article III federal courts, as or within an Article I court,
or as an administrative tribunal;

4. The selection, appointment, management, and oversight of officials who preside over proceedings in a potential small claims patent court;

5. The subject-matter jurisdiction of a potential small claims patent court,
whether participation in such proceedings would be mandatory or
voluntary, and whether parties can remove cases to another administrative
tribunal or federal court;

6. The procedures and rules of practice for a potential small claims
patent court, including, as relevant, pleadings, discovery, and alternative
dispute resolution;

7. The remedies that a potential small claims patent court would be able to
provide;

8. The legal effect of decisions of a potential small claims patent court; and

9. Opportunities for administrative and/or judicial review of small claims
patent court decisions.

While I forsee lots of issues associated with a small claims patent court, I would imagine that the issue preclusion issues arising from an invalidity determination would be need especially carefully thought out, as well as whether patent owners could use this mechanism to bring large quantities of suits against consumers/end users who lack the resources to adequately defend themselves against a patent infringement claim.

Comments are due by July 5, 2022, and can be submitted at “info@acus.gov,” with “Small Claims Patent Court Comments” in the subject line of the message.  Remember that submitted comments may be made publicly available.

Credit to Jeremy Graboyes for bringing this to my attention.

71 thoughts on “A patent small claims court – what do you think?

  1. 13

    Any court that specializes in patent cases is a move in the right direction. While we are on the subject, how about a court of appeals just for patent cases whereby the judges have to have experience in patent law with a technical undergrad degree. The CAFC handles all sorts of cases and only approximately 30% of the judges have a technical background that is required even for lowly patent examiners.
    We need to clone Judge Newman and pack the CAFC with her.

    1. 13.1

      “Any court that specializes in patent cases is a move in the right direction.”

      I am a little perplexed why the discussion is about a small-claims patent court and not just a national patent court. I would guess the reason is because it’s a foregone conclusion that major players would object… but I don’t know who the objectors would be.

      So I’ll just query opinions here: if Congress made an article 3 court that would handle all the patent cases which district courts previously handled, whose ox would be gored?

      1. 13.1.1

        I think that it is safe to say that, historically, the courts that focused most particularly on patent law (CCPA & CAFC) have ended up cultivating a jurisprudence that is relatively more friendly to patentees than was the jurisprudence cultivated by the more generalist courts (CA1–CA11 & CADC). I think, therefore that we could safely predict that a specialized, patent-focused set of district courts would be more friendly to patentees (which is not necessarily to say very friendly) than are most district courts at present.

        Rationally, one would expect the patent defendant’s bar to be the side most volubly opposed to such a creation. As you can see throughout this comment section, however, the patentee side has been so thoroughly discombobulated over the last decade that we are grown suspicious of any proposed reforms by now. Many on my side of the aisle will smell a rat by now, even where none is present. Therefore, one might well expect to see such a reform proposal torched by both sides (as happened with the proposed Tillis/Coons §101 reforms).

      2. 13.1.2

        Most likely, such a court would optimally follow those exiting ones today that reflect respect for those that have gone out of their way to partake in the innovation protection systems, and thus, the largest cry would come from the Efficient Infringers.

      3. 13.1.3

        The main reason people would object is because it’s not clear precisely “whose ox would be gored.” The uncertainty creates big risks for both sides.

        There are tons of examples of specialized tribunals (including Article III courts) eventually being “captured” such that they eventually favor the interests of one class of stakeholders over another, primarily based on who was appointing/nominating/selecting those judges. In the patent context, the fear is that a specialized court will exhibit the same political pendulum swings you see routinely in administrative agencies today, and thus might wildly vacillate between pro-patent holder or pro-defendant biases depending on the current political climate.

        You don’t see that problem with Article III district judges today when it comes to patents because, with exception of a few outlier districts, patents represent a tiny fraction of a district judge’s caseload. The predispositions of district court nominees on patent law thus rarely weigh into the nomination process, and patents are almost never the subject of questions during confirmation hearings. The result is that with a specialized patent court, when compared to generalist district judges, you’re more likely to get judges with a pro-patent or pro-defendant bias hearing your case.

        Of course, this doesn’t mean a specialized patent court judge won’t be fair or impartial. But it does create a risk of introducing bias into trial court adjudication of patent cases that just doesn’t exist today, so I think a lot of people are understandably reluctant to deviate from the current system and introduce those types of risks. (I mean, can you imagine the terror pharma companies might experience if a specialized patent court was created today and the current administration appointed all of its judges?)

        1. 13.1.3.1

          FWIW, I am a pharma patent attorney, and I can contemplate with complete equanimity the idea of Pres. Biden appointing judges for a specialized patent court. This is not all that terrifying a notion.

          1. 13.1.3.1.1

            But it SHOULD be.

            That you do not feel that, is rather an indictment AGAINST you – not some badge to wear proudly.

    2. 13.2

      Judge Newman doesn’t have all the answers and gets some things wrong – very wrong. The same is true with Judge Moore, and those are my favs.
      I look forward to seeing more from Judge Cunningham. So far her work has been great – although I’ve seen no really hard cases from her. She may be my #3 fav soon. My point – I like to have varying fields of wisdom in a court.

      That said, an EE degree didn’t do Judges Chen and Stoll a lot of good.

    3. 13.3

      Jr @ 13: “Any court that specializes in patent cases is a move in the right direction.”

      I disagree — not any court. Do not kid yourself as to what may be the true impetus for this proposal; remember that expediency, efficiency, simplicity, and lower cost alternative to litigation were the stated reasons for establishing AIA trials at the PTAB in the first place; how did that work out for small entity patent owners?

      This recent proposal came from the USPTO. What business or interest does the USPTO have in matters relating to adjudicating infringement? Note the topics posed in the Notice for public comments:

      “9. Opportunities for administrative and/or judicial review of small claims patent court decisions.

      The only way in which “administrative review” would be possible for the small claim tribunal is for it to be a non-Article III court. And because plaintiffs of small claims will ostensibly waive their right to a jury trial, there will be those who will argue for the USPTO to expand its role beyond AIA trials. This opens up the prospect, and invites pressure on Congress, to introduce yet another administrative tribunal within the USPTO (“after all, this agency has expertise in patents”) to undermine patent rights. Of course, initial proposals will pay lip service for the right of a patentee to opt-out of using the small-claim tribunal; but how long would it take for proponents to later push for the elimination of this opt-out option?

      No Jr, think again. This may well be a move in the wrong direction.

  2. 12

    As some of the comments have brought out, this is a remarkably open-ended proposal. ACUS/PTO is thinking about something it might call a “small claims court” for patents, and would like input on every aspect of what that thing might look like, including whether any such thing should exist at all.

    The picture in my head is very streamlined procedures to the point of lawyers not being required or necessary, capped damages (I’m not sure how much–maybe low or high 5 figures), and (per my comment #10) no preclusion beyond the two parties to the case. I’m not sure what appeal rights would look like. I’m also not sure what sorts of patent infringement claims are out there that people would be asserting but for the great expense of district court litigation.

    Greg D. has more or less convinced me that the picture in my head would quickly become a haven for trolls. If you cap damages at, say, $10,000, and make small claims suits very cheap to file, then someone like MPHJ can file a ton of suits against every coffee shop with WiFi, demanding $10k from each. If they win a fraction of them or settle most of them, that’s still potentially lucrative, especially if the forum is designed to be cheap to file in. And if there’s no preclusion, then it might continue to be lucrative for years even if the troll loses 90% of the time.

    This leads me to think that maybe it should be possible to permanently invalidate patents in small claims court, but I have concerns (which many commenters seem to share) about doing that sort of thing through streamlined procedures. It’s not necessarily unconstitutional in the sense of extinguishing property rights without due process, but still seems like a bad idea.

    Unless I’m missing something, all of this leads me to wonder whether there’s any need for a small claims court for patents. People have proposed this sort of thing for years, and it’s never caught on. Maybe that’s a sign. I’m sympathetic to the idea that district court patent litigation is simply too expensive, and the high cost must be deterring a bunch of people with meritorious but relatively low-dollar claims from filing. On the other hand, I have no idea who those people are or what their claims would be, and think there needs to be a more concrete showing of need along those lines before these proposals actually go anywhere.

    I’ll be interested to see if the public comments turn out to be useful on this point.

  3. 11

    Big picture is that the AIA was sold as improving patent quality and removing a few nuisance lawsuits. What we got was the decimation of the patent system with patent value dropped at least 80 percent because of Alice/IPRs.

    And now the great geniuses have a new idea to improve patents? Not believable.

    Fix IPRs. Standing + real estoppel.

    Plus do something about the CAFC. Wipe it and all the case law since 2000 and maybe try again where a judge has to have a science degree and a registration number.

    1. 11.1

      Think about what an f’ing joke this proposal is. The Congress has destroyed the patent system with the AIA and can’t get enough votes together to fix major holes. And now they want to pass new legislation supposedly to help.

      LOL!! LOL!!

      It would be funny but these employees of large corporations (Congress) are serious and will sell us arsenic telling us they are making us the blue plate special.

  4. 10

    I’m a bit surprised at the skepticism from the pro-patent crowd. The proposal says that it’s meant to help patent owners–at least those with limited resources and “small” claims. The piece Dennis quotes says this: “the high cost of patent litigation deters small- and medium-sized enterprises, including those owned by traditionally underrepresented groups, from seeking to enforce their patents.” That’s the pitch I’ve heard in the past, and I don’t have any reason to doubt it or to think that this is about making it easier to invalidate patents.

    The point Dennis raises (and many comments allude to) is an interesting one. Would anyone object if (1) Small Patent Claims Court decisions on validity and/or infringement have no preclusive effect at all in other tribunals, like the ITC, and (2) SPAC decisions have no preclusive effect in other SPAC proceedings, except in future suits between the same parties on indistinguishable accused products?

    The point of SPAC seems to be cheaper resolution of small patent claims. Presumably they’d cut costs by having streamlined procedures, limited discovery, and the objective of a judgment that only resolves the specific dispute between the two parties and never results in a massive damage award. If a quick streamlined SPAC proceeding determines that a defendant owes no damages because the patent is invalid, that shouldn’t have any broader implications beyond the two parties and the accused product(s)…. at least as I’m picturing it.

    Maybe others have something different in mind.

    1. 10.1

      Would anyone object if (1) Small Patent Claims Court decisions on validity and/or infringement have no preclusive effect at all in other tribunals, like the ITC…?

      It is an interesting idea, but I expect that would prove totally unworkable in practice. You are, in effect, proposing a sort of heads-I-win,-tails-you-lose forum for patent enforcement.

      The so-called “troll” does not actually want his day in court. Days in court cost money. Rather, the “troll” wants to reach a high volume of quick settlements, even if each is only for a small dollar value.

      If one were to create a venue (1) specifically aimed at low-dollar awards, but where (2) validity is untouchable, you are essentially creating a “troll” paradise. This, in turn, will quickly become fetid with the worst sorts of abusive patent assertions, of the sort fairly calculated to throw the patent system into public disrepute.

      The outcry to dismantle this forum (and worse) will become deafening in less than a half-decade. The “reforms” that follow would make the AIA look like penny ante trifling by comparison.

      1. 10.1.1

        This is all well-taken, but isn’t part of the “troll” strategy to leverage the expense of normal district court litigation and the specter of massive damages? Small claims would seemingly do away with both.

        I think I’ve read that it costs on the order of $1M or more on average to litigate a case in district court. And a “troll” who goes after someone like Apple or Samsung is looking to multiply some royalty rate by tens or hundreds of millions of iPhones or Galaxy phones. A “troll” might say “you might win, but it’ll cost you $1M to win, so pay me $500k to go away.” Or it might want a shot at a nine-figure jury verdict. Neither of those things should be possible in small claims patent court, so I’m not sure how it becomes a troll paradise.

        I’m willing to believe you’re right; just haven’t thought much about this before and am not yet convinced.

        1. 10.1.1.1

          [I]sn’t part of the “troll” strategy to leverage the expense of normal district court litigation and the specter of massive damages?

          For some “trolls,” yes. I was thinking rather of the MPHJ sort (send out a million demand letters, one to every realtor, restaurant, or insurance agent with a Ricoh copier in their office). That sort is hoping to win 100,000 settlements of $10k each, not a single settlement of $1M. That sort would look on a small patent claims court as you describe like a sort of Shangri La. Pretty soon, every moderately successful small business in America would be receiving summons to such a court, and shortly afterwards every one of those small business owners would be howling down the telephones of their senators and representatives. It would prompt a backlash against patents that would ruin the system.

      2. 10.1.2

        Re: “Would anyone object if (1) Small Patent Claims Court decisions on validity and/or infringement have no preclusive effect.. ” Yes, it would leave PAEs and other owners of invalid patents to continue to assert those same invalid patents against numerous others.

    2. 10.2

      Re: “never results in a massive damage award.” What would that recovery cap be?
      It may well be considered “massive” [including defense and “limited” discovery costs] to the many small businesses or individuals likely to be accumulatively sued by PAEs for such “small claims.” Small businesses would be unlikely to afford to even develop effective invalidity defenses. If the cap is small enough, many large companies might well not even pay to defend themselves and treat such suits as nuisance payoffs. Both, and the lack of any preclusive effect, would leave PAE and other owners of invalid patents to endlessly assert those same invalid patents against numerous others.
      As I noted before, see who is suing who in the new Copyright small claims “court” before assuming who would actually use, and what would be accomplished, in a patent small claims court [handling far more legal issues].

  5. 9

    Great, instead of double jeopardy (IPR and Article III court) we would have triple jeopardy. If you don’t like the results in Patent Small Claims Court (PSCC) you appeal it to a real court.

    With an individual inventor up against the corporation’s lawyer, and with a judge who knows less about patent law than the typical district court judge, who do you think would win? Note that most individual inventors don’t know the intricacies of patent law. Some don’t know even the basics. That is why most of them hire a patent attorney/agent.

    A better solution is to throw the IPR in the dumpster where it belongs.

    1. 9.1

      “A better solution is to throw the IPR in the dumpster where it belongs.”

      Yes, that.

  6. 8

    LOL! Yes let’s fix the problem by adding more causes of action. That will make things simpler and cheaper. /sarcasm off

    1. 8.1

      This idea has been floated around for at least 20 years and almost always by the anti-patent judicial activists. My guess is they want an easier way to invalidate the patents of the great unwashed.

      1. 8.1.1

        Is that in a “divide and conquer sense”…?

        Open it up to identity the “bad actors” and them slam them?

        1. 8.1.1.1

          The idea is to make it cheaper to invalidate the patent. And to diminish the value of patents. The maximum award will be capped.

          1. 8.1.1.1.1

            I am not sure that it is really quite accurate to say that a small claims patent court would make it cheaper to invalidate a patent. It is true that if the small claims trial ended in invalidation, that the whole process would be cheaper than reaching the same result in front of a U.S. district court. On the other hand, neither side would have lawyers, and neither would be permitted to adduce witnesses, which might make it difficult to reach a verdict of invalidity. Even in a world in which this small claims court existed, I expect that the PTAB would remain a more cost-effective means for a challenger to reach an invalidity verdict.

            1. 8.1.1.1.1.1

              I suspect not. And I also suspect that if the small claims court came about that we would see this as just another way to invalidate a patent particularly with multiple Ds.

              When you own a patent, it only takes one invalidity to end the patent. You can win over and over again but only one lose and it ends the patent.

              1. 8.1.1.1.1.1.1

                That was part of Ron Katznelson’s expose on the presence and level of the presumption of validity for granted patents.

                Of note here Night Writer, is that the person conversing with you – Greg “I Use My Real Name” DeLassus has repeatedly mis-represented that important stick in the bundle of property rights of a granted patent.

              2. 8.1.1.1.1.1.2

                A challenger will still need to prove invalidity by clear & convincing evidence. Have you ever seen that happen without expert witnesses?

        2. 8.1.1.2

          Can’t help but notice that Greg’s comment at 10.1 reflects my comment above.

          All we need is one of his “I can’t see but will be snarky anyway” posts here.

  7. 7

    Reality check: The devil is in the details.

    Because patent litigation is far too complex to be fairly and reasonably conducted within a small (whatever that means) claims structure, there will never be a patent small claims court.

    Never. Ever.

    1. 7.1

      e.g., an infringed independent inventor sues Facebook. Since attorneys presumably wouldn’t be permitted to represent FB, is the innovation-stealing man-child Zuckerberg going to handle the defense?

      1. 7.1.1

        There is no such presumption – only the pipedreams of someone who has had their hands smacked on a patent matter and insists on not understanding the legal terrain of patent law.

      2. 7.1.2

        The policy of the federal courts is to follow the rules regarding the appearance of representatives for the local jurisdiction in which the federal courthouse sits. The CA Code of Civil Procedure (§ 116.540(b)) provides that “a corporation may appear and participate in a small claims action only through a regular employee, or a duly appointed or elected officer or director, who is employed, appointed, or elected for purposes other than solely representing the corporation in small claims court.” That reads to me as if Zuck would qualify, but so would a variety of other FB employees.

        I expect that if corporations as large as FB were regularly being haled into small claims court, that “who is employed… for purposes other than solely representing the corporation in small claims court” would get a lot of work. Would a lawyer on their in-house staff who also (e.g.) manages litigation in big-boy court be allowed?

  8. 6

    Tell you what, I stand behind this concept only if the small claims court judge is a patent prosecutor (which inherently means a USPTO registration number), and drafted at least 400 patent applications.

    1. 6.1

      What sort of expertise do we prosecutors bring to the task of adjudicating infringement?

      1. 6.1.1

        In-house counsel?

        Perhaps not much.

        Us in the actual trenches?
        Tons.

      2. 6.1.2

        If solely P&P practice attorneys were made patent case judges: How often do full time P&P attorneys decide inequitable conduct, infringement damages, marking statue recovery limitations, doctrine of equivalents cases, inventorship disputes, prosecution history estoppel, IPR estoppel, disputed on sale bars or public use bars, disputed enablement, conflicting declarations or conflicting witness testimony, evidentiary issues, Markman hearings, scope of allowable cross examinations, etc., etc..

        1. 6.1.2.1

          “How often do full time P&P attorneys decide …”

          All the freaking time.

          1. 6.1.2.1.1

            Better you than I.
            Somehow, however, I remain skeptical that P&P experience leaves one more particularly qualified than patent litigators to decide infringement disputes.

            1. 6.1.2.1.1.1

              The thrust was NOT “better than.”

              But you be you.

  9. 5

    This is an even worse idea than the newly established copyright small claims court,* but with far more complex technical and legal issues.
    *Wait to see who actually uses that one the most – my bet is on big music organizations suing mom and pop restaurants and stores for playing copyrighted music.
    Note that arbitration has always been available for deciding patent disputes if both parties were really interested in low cost dispute resolution.

    1. 5.1

      Cost is, was, and always will be a weapon.

      1. 5.1.1

        Indeed, as noted here several times, regular full blown patent litigation costs in the millions are the main reason why approximately 95% of patent suits with no pre-trial decision are are settled before trial. Typically with a negotiated settlement payment to the patent asserter as long as the amount the patent asserter will accept is less than the anticipated litigation cost.

        1. 5.1.1.1

          approximately 95% of patent suits with no pre-trial decision are are settled before trial.

          Thanks Paul — taking that at face value, is there not a direct impact to other things like Judge Albrights supposed “unreasonable” scheduling?

          If the number you gave is even a modest approximation, then scheduling – even very aggressive scheduling – must be looked at a bit differently, eh?

          1. 5.1.1.1.1

            If Judge Albright was actually going to trial as fast as his projected trial dates had been for his huge docket, then yes it would be likely to save some patent litigation expenses. But the real issue is the complaints about PTAB Fintiv refusals to institute valid IPR petitions based on those projected trial dates.
            As noted, he does conduct early Markmans, and reportedly has lots of pre-trial settlements, but I have not seen statistics on how many of his Markmans resulted in pre-trial non-infringement decisions. Would not both the latter and actual Waco trial decisions logically have produced a lot more Fed. Cir. appeal decisions from Waco by now?

            1. 5.1.1.1.1.1

              You are perhaps raising some decent enough points — but do you acquiesce to how your first point should be understood?

            2. 5.1.1.1.1.2

              Even a regular IP Watchdog article contributor has criticized Fintiv IPR denials in J. Albright’s Waco cases. Noting that “..the primary beneficiaries of those rulings, the lawyers, have racked up tens of millions in legal fees over the course of those intervening 2+ years, with more to come. What’s less clear is why the 2020 USPTO put any stock in the clearly fictional trial dates Judge Albright couldn’t meet for one trial, much less three supposedly concurrent ones.”

              1. 5.1.1.1.1.2.1

                even a regular…?

                Which one?

                Not every commentator earns respect for their views by being merely a regular.

                You should know that.

                What’s less clear is why the 2020 USPTO put any stock in the clearly fictional trial dates Judge Albright couldn’t meet for one trial, much less three supposedly concurrent ones.”

                Yeah – I am going to call you out for this clearly B$ statement of yours – as this is exactly against your own assertion here that I am emphasizing.

                IF – and taking your own assertion as an admission against interests – “as noted here several times, regular full blown patent litigation costs in the millions are the main reason why approximately 95% of patent suits with no pre-trial decision are are settled before trial.” scheduling is not and cannot be “clearly fictional.”

    2. 5.2

      Since small claims patent court infringement recoveries from each defendant would be restricted, it will go nowhere politically when it is realized that the logical usage would be suits against large numbers of small businesses by the PAEs who have already been doing that and have inspired so many state laws and at least one FTC action by mass mailing threats to small business.
      Also, there are several ways in which the costs of conventional patent suits can be substantially reduced without unrealistic legislation, as has been demonstrated by some “rocket docket” District Court judges and others. E.g., time deadlines, local rules for early claim infringement assertion specificity, discovery control and prompt motions dispositions, and especially, early Markman hearings for disputed claim definitions and summary judgment motions based on those definitions. Also, stays for prompt IPRs and early Alice or Mayo unpatentable subject matter motion decisions.

      1. 5.2.1

        Paul is right. Such a court would mostly be used to bring small-dollar (read “nuisance”) suits against small businesses (e.g., MPHJ suing every office with a Ricoh copier). This would quickly become the poster child for everyone trying to tell an “trolls are destroying America” story. It would be bad for patents overall.

  10. 4

    Off topic, but the CAFC today denied mandamus (Moore, Dyk, Prost) for a transfer out of the WDTX in In re ZTE.

    1. 4.1

      Also, Dir. Vidal vacated the PTAB’s decision in IPR 2016-01520, so the CAFC (Prost, Reyna, Taranto) today dismissed the appeal that had emerged from that IPR.

      1. 4.1.1

        Thanks Greg. If new Director Vidal has vacated the PTAB’s decision in IPR 2016-0152o, she must have put cleaning up post-Arthrex IPR reconsideration decisions directed to the Director on the top of her agenda, as Dennis and others had predicted.

        1. 4.1.1.1

          My apologies. The order was styled “Personalized Media v. Vidal,” which I rather sloppily interpreted as meaning that Vidal had decided the reconsideration decision that caused the dismissal order. Now that I have gone back and checked the IPR file wrapper, however, I see that Hirshfeld actually decided this particular reconsideration decision.

          The only reason that I thought that this decision was worth a mention was because it was the first instance that I had seen of Vidal deciding a reconsideration petition. I see now, however that Vidal did not actually decide this reconsideration petition, so the whole thing was scarcely worth the mention. I apologize for taking up anyone’s time with the thing.

  11. 3

    What a “small claim” means in a patent sense is the critical dimension.

    Probably set it at the bottom dollar limit for diversity jurisdiction: $75K of maximum potential damages?

    And no lawyers or experts. Litigants represent themselves. If the facts of a given case require experts and lawyers, it would no longer qualify as a “small claim”.

    Judge Wapner and Rusty can manage just fine if the question is if some motel owes money on their use of a patented Internet modem etc.

    1. 3.1

      And no lawyers or experts

      Because, who needs them?

      1. 3.1.1

        Because that’s the very essence of a small claims court concept.

        Lawyers and experts are essential when actual money is on the line.

        I’d have to add that any proceeding of any small claims concept could have no estoppel or waiver effect in future litigation with different litigants in different fora.

        1. 3.1.1.1

          Nice to see you confuse small and simple.

          Wait, no, no it is not.

        2. 3.1.1.2

          I wonder if some folks here do not understand what a small claims court is. Pro Se’s “whatever that means” with regard to “small” in #7 above, for example, reads as if Pro Se just does not understand what a small claims court is.

          1. 3.1.1.2.1

            “as if Pro Se (Say) just does not understand what a small claims court is.”

            Fine. To insure clarity:

            I’m referring to what the damages dollar limit would be.

        3. 3.1.1.3

          I’d have to add that any proceeding of any small claims concept could have no estoppel or waiver effect in future litigation with different litigants in different fora.

          Obviously, if Congress creates such a small claims forum for resolving patent disputes, it can set any rules it likes. I think, however, that the rule that you are proposing deviates slightly from ordinary practice in other small-claims fora. The usual rule is that there is no collateral estoppel effect from small claims court for the defendant, but there can be for the plaintiff (assuming that the record from the small claims case is sufficiently clear to discern that the issue for which collateral estoppel is sought was fully and fairly litigated in the small claims court). Pitzen v. Superior Court, 16 Cal. Rptr.3d 628, 636 (Cal. App. 4th Div. 2004).

    2. 3.2

      Only attorneys can represent a corporation in court, including small claims court.

      FWIW, this is a cheesy way to win a case against e.g., a local landlord who incorporated (though it’s only a temporary victory, as the Judge will normally allow them to refile)

      1. 3.2.1

        Are you sure? I suppose that this varies state-to-state, but in CA a legal entity may be represented by a non-lawyer in a small claims court action under Code of Civil Procedure § 116.540(b). Under § 116.530, attorneys in California generally cannot represent clients in small claims court actions.

  12. 2

    1) after witnessing tsunami of procedural litigation arising out of IPR’s, the only sensible decision would be to follow the KISS philosophy e.g., ordinary article 3 court, no removals, etc.

    2) I’m pretty skeptical that this will help “small- and medium-sized enterprises.” Don’t they generally prefer article 3 courts?

    2.5) the only improvement I can envision that might actually help SMB’s would be an ITC-like rocket-docket. Perhaps something like hard deadlines of 180 days to trial + 12 months for a final decisions + only remedy is an injunction?

    1. 2.1

      3) automatic stay of any/all other proceedings (including IPRs). The last thing a SMB wants is simultaneous litigation in multiple forums.

    2. 2.2

      Maybe model this after some of Judge Albright’s procedures…

      Or (gasp) create a Judge Albright Patent court.

  13. 1

    Coming off of Arthrex, I am immediately left to wonder as to the propriety and sustainability of any efforts that your post delves into.

    To wit (my emphasis added):

    The Administrative Conference of the United States (ACUS) is an b>independent federal agency [what does “independent” here mean – it is an Executive Branch agency, correct?] that’s charged with recommending improvements to administrative process and procedure. The position of Chairman is currently vacant [and for how long – the title of “Acting” is in fact time-limited per the APA], so the Vice-Chairman, Matthew Lee Wiener, is serving as Acting Chair

    Let’s set the propriety first, thanks.

    1. 1.1

      I THINK THIS IS CALLED AN IN HOUSE SITUATION ( PUN INTENDED.) I am Cardinal Edward Egan’s niece. IMAGINE ….. He did this to me,and then my daughter,showing his racism. If she were a boy,that too…

      1. 1.1.1

        sarah,

        Is there anything in your reply even tangentially related to my post? How?

        1. 1.1.1.1

          YAH, EMBEZZLEMENT,AND A WILL HIDDEN I CALL THAT A LACHES. AND THE IRMA’S OBIT AUTHOR IS AT THE TOP OF THE WHOLE LACHES. MY SON TOOK MY ASSETS,AND THEN USED MY ATTY AND NANCY BECAUSE MY B C WAS CHANGED FROM BABY FAY TO A COUNTERFEIT MONOPOLY THAT WAS USED BY ALL.

        2. 1.1.1.2

          YAH, EMBEZZLEMENT,AND A WILL HIDDEN I CALL THAT A LACHES. AND THE IRMA’S OBIT AUTHOR IS AT THE TOP OF THE WHOLE LACHES. MY SON TOOK MY ASSETS,AND THEN USED MY ATTY AND NANCY BECAUSE MY B C WAS CHANGED FROM BABY FAY TO A COUNTERFEIT MONOPOLY THAT WAS USED BY ALL BECAUSE IT WAS A BARTERING CHIP.

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