Who Cares About Claim Construction?

The Docket Report blog pointed us to a routine scheduling order that has the possibility of upsetting the patent litigation routine at least in one district court. As enshrined in the local patent rules of many district courts and the local practice of many others, patent litigation usually begins with the claim construction dance in which Plaintiff and Defendant identify a list of claim terms or phrases in dispute, then brief those disputes for the Court, which then hears oral argument before adjudicating those disputes in a claim construction order. This process is time–consuming for lawyers, which means expensive for clients, and for the Court, which must construe all of the disputed terms whether or not the interpretation of those terms will actually have a bearing on the final resolution of the lawsuit. After the Court has parsed the claim language of the patent–in–suit do the parties, only then can the parties file competing motions for summary judgment based on those constructions—a second layer of time–consuming, therefore expensive, motion practice.

It appears that Judge Crabb of the Western District of Wisconsin has had enough of claim construction as usual, and “has decided to implement…changes in all pending patent lawsuits in which the parties have not yet submitted briefs on claim construction.” While parties in patent litigation before Judge Crabb are still required to exchange claim terms believed to be in dispute, Judge Crabb has elected to collapse claim construction and summary judgment practice, so that parties briefing summary judgment must also brief claim construction of those terms directly relevant to their motions. This “new combined procedure” is intended to “result in more tightly focused construction requests.”

In a legal world in which courts worry about settlement demands driven by the high cost of litigation rather than the merits of the underlying dispute, it will take judicial innovations such as this one to focus the parties’ attention on the issues they really care about, saving judges and lawyers time, and plaintiffs and defendants money.