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Linking Patent Reform and Civil Litigation Reform

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Linking Patent Reform and Civil Litigation Reform

Chicago-Kent College of LawScholarly Commons @ I IT Chicago-Kent College of LawAll Faculty ScholarshipFaculty Scholarship42005Linking Patent Reform an

Linking Patent Reform and Civil Litigation Reformnd Civil Litigation ReformGregory ReillyIIT Chicago-Kent College of Law. greilly! (akentlaw.iit.eduFollow this and additional works at: https://schola

rshlp.kentlaw.ilt edu/fac_schol Ò* Part of the Law CommonsRecommended CitationGregory Reilly, Linking Patent Reform and Civil Litigation Reform. 47 Lo Linking Patent Reform and Civil Litigation Reform

y. u. Chi. L. J. 179 (2015).Available at: https://scholarship.kentlaw.iit.edu/fac_schol/875This Article is brought to you for free and open access by

Linking Patent Reform and Civil Litigation Reform

the Faculty Scholarship at Scholarly Commons (ỹ IIT Chicago-Kent College of Law. It has been accepted for inclusion in All Faculty Scholarship by an a

Chicago-Kent College of LawScholarly Commons @ I IT Chicago-Kent College of LawAll Faculty ScholarshipFaculty Scholarship42005Linking Patent Reform an

Linking Patent Reform and Civil Litigation Reformentlaw lit edu.Linking Patent Reform and Civil Litigation ReformGreg Reilly*Patent reform increasingly focuses on discovery. Discovery is perceived as

disproportionately expensive and burdensome in patent cases. Excessive discovery is said to fuel so-called "patent trolls " and impose an unhealthy t Linking Patent Reform and Civil Litigation Reform

ax on innovation and competition. These supposedly exceptional problems have led to exceptional patent-only reform proposals, such as delaying most di

Linking Patent Reform and Civil Litigation Reform

scovery for over a year and reversing the seventy-five-year-old allocation of discovery costs.Treating patent litigation as exceptional has a siloing

Chicago-Kent College of LawScholarly Commons @ I IT Chicago-Kent College of LawAll Faculty ScholarshipFaculty Scholarship42005Linking Patent Reform an

Linking Patent Reform and Civil Litigation Reformnsive and burdensome discovery and propose their own set of reforms. This Article links patent reform to civil litigation reform, arguing that patent

discovery is not exceptional in its costs, supposed effects, or causes. Instead, patent discovery is representative of a subset of discovery-intensive Linking Patent Reform and Civil Litigation Reform

civil cases. The main problem With discovery in parent cases is not abusive tactics of “patent trolls " or inherent technical complexity but rather c

Linking Patent Reform and Civil Litigation Reform

omplex and open-ended remedial doctrines. Doctrinal complexity is not unique to patent litigation.Pinpointing rhe source of patent discovery problems

Chicago-Kent College of LawScholarly Commons @ I IT Chicago-Kent College of LawAll Faculty ScholarshipFaculty Scholarship42005Linking Patent Reform an

Linking Patent Reform and Civil Litigation Reform patent cases. Greater use of staged litigation—litigating and resolving some potentially case-dispositive issues before any discovery or other litiga

tion occurs on more discovery-intensive issues—is a potentially• Assistant Professor of Law. California Western School of Law. Thanks to Jonas Anderso Linking Patent Reform and Civil Litigation Reform

n. Tom Barton. Jeremy Bock. Michael Burstein. Dennis Crouch. Roger Ford. Shublra Ghosh. Paul Gughuzza. Mark Janis. Nancy Kim. Ken Klein. Dan Kleiman.

Linking Patent Reform and Civil Litigation Reform

Megan LaBelle. Mark Lemley. Orly Lobel. Michael Meurer, Lisa Ouellette. Lain a Pedraza-Farina. Dave Schwartz. Ted Sichelman, David Taylor, and Greg Ve

Chicago-Kent College of LawScholarly Commons @ I IT Chicago-Kent College of LawAll Faculty ScholarshipFaculty Scholarship42005Linking Patent Reform an

Linking Patent Reform and Civil Litigation ReformInnovation and Policy seminar at University of San Diego School of Law. and University of San Diego School of Law IP Speakers Series, for helpful disc

ussions and comments on this and earlier versions of the project.179180Loyola University Chicago Law Journal [Vol. 47valuable tool for reforming gener Linking Patent Reform and Civil Litigation Reform

al civil litigation. Notably, staged litigation preserves the plaintiff's access to information and right to a jury trial, overcoming objections to ot

Linking Patent Reform and Civil Litigation Reform

her efforts to reduce civil litigation costs, like Twombly/Iqbal plausibility pleading.Introduction...................................................

Chicago-Kent College of LawScholarly Commons @ I IT Chicago-Kent College of LawAll Faculty ScholarshipFaculty Scholarship42005Linking Patent Reform an

Linking Patent Reform and Civil Litigation Reformm................................190c. The Divide Between Patent and Civil Litigation Reform...192II.COMPARING the Problems of Patent and Civil Discov

ery.......196A.The Costs of Patent and Civil Discover)'...............196B.The Consequences of Patent and Civil Discovery.........199III.Comparing the Linking Patent Reform and Civil Litigation Reform

Causes of Patent and Civil DiscoveryProblems...................................................203A.Patent Assertion Entities and Discovery Problems.

Linking Patent Reform and Civil Litigation Reform

......2041.Empirically, Discovery Costs are Lower in PatentAssertion Entity Litigation.........................2052.Theoretically, Discovery Costs Sho

Chicago-Kent College of LawScholarly Commons @ I IT Chicago-Kent College of LawAll Faculty ScholarshipFaculty Scholarship42005Linking Patent Reform an

Chicago-Kent College of LawScholarly Commons @ I IT Chicago-Kent College of LawAll Faculty ScholarshipFaculty Scholarship42005Linking Patent Reform an

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