Patent Showdown at the N.D. C[orr]al

Abstract

Software patent cases often present dozens of claims requiring tremendous effort and years of costly litigation to reach a resolution. In a provocative essay, Judge William Alsup offers an innovative case management solution inspired by western frontier justice. As Judge Alsup warned attorneys in a recent case, tell your clients that “the day of reckoning is close at hand.”

Modeled after the famous “Shootout at the OK Corral,” the “Showdown at the N.D. C[orr]al” aims to streamline patent litigation by requiring the patentee to choose its “best” claim and the defendant to choose the “weakest” claim for an early summary judgment showdown. Judge Alsup emphasizes the potentially severe stakes: “injunction city” if the patentee prevails and “big” sanctions if the claims fail.

This article assesses whether Judge Alsup’s patent case management invention works for its intended purposes. Based on a review of the two showdowns to date, it concludes that the showdown procedure has yielded mixed results. The procedure, however, raises serious fairness concerns that could well lead to a bigger showdown at the Federal Circuit Corral.

Keywords: Patent, Case Management