This morning’s edition of IP Law360 (subscription) features an informative article on judges’ pet peeves in patent litigation. Featured in the piece are two D. Del. judges: Chief Judge Sleet and Judge Farnan.
Of note are the judges’ comments on summary judgment motions and the use of experts. On the issue of summary judgment, Chief Judge Sleet noted that:
Generally in these cases, both parties have experts who are ready, willing, and able to come to court and dispute the facts. It can be a significant waste of time and money to bring a summary judgment motion.
Judge Farnan agreed: “The problem is, if I’m a lawyer for a generic and I’m attacking a patent and I think it is obvious because of a combination of two prior pharmaceutical products, there’s almost always going to be a dispute of facts.”
On the topic of experts, Judge Farnan cautioned litigants against expert overkill:
I pretty much let [litigants] try the case they want, but I talk to them in the pretrial conference about the value [experts] offer. I have to write an opinion, and they want that opinion yesterday. So I tell them, ‘the more you put into that trial record, the more I have to consider and address.’
Patent litigation is an aggressive, competitive field of law. The judges’ comments today add valuable perspective – that of the decision maker – to how best to champion the causes of our clients.