I’m not sure what the percentages are, but for attorneys jaywalking, or missing deadlines in the Local Rules, it must be about the same figure. Courts have forgiven litigants who failed to provide adequate initial disclosures, to serve ‘final’ experts reports, or to complete depositions by the pretrial drop-dead date that the Court had set, seventy times seven. But then, someone has to become the unlucky poster child who is made ‘an example’ and this time it was the patentee in Safeclick v. Visa (CAFC 06-1182).
Safeclick served its claims chart and infringement contentions, as required by the Local Patent Rules in the N.D. Calif. Visa took issue, arguing for summary judgment based on the absence of one claimed element. Safeclick’s opposition brief added an aspect to its previously-disclosed infringement theory. Visa asked that the new matter be precluded. The district judge “refused to consider Safeclick’s new theory, and summary judgment was granted in Visa’s favor.” That’s the hammer!
The Federal Circuit quotes passages from the Patent Local Rules of the N.D. Calif., but none of those provide that noncompliance can be ground for, in essence, the sanction of a no-cause, or a judgment for the opponent. In fact, the Local Civil Rules in the N.D. Cal. state, that a failure to comply “may be a ground for imposition of any authorized sanction.” L.R. Civ. 1-4. The predecessor rule was limited to “such sanctions authorized by statute or rule.” The point is, on what basis can an absolute bar or imposition of a waiver, be assessed against a patentee who realizes late that its claim construction and infringement theory need to be revised.
These local rules should have no more force than a scheduling order entered under FRCvP 16(b) – should they? The Federal Circuit took a hands-off approach, and said its review was “very deferential.” That is a lower standard that the CAFC applies when reviewing sanctions for noncompliance with a pretrial scheduling order.
The other odd points about this ruling are that it’s was not designated as precedential, and that, the review apparently was treated as an issue unique to the patent law jurisdiction of the Federal Circuit. The first point is that the ruling, being non-precedential, is limited to its particular facts. But, is the decision to be seen a caveat to litigants, or as a boost to district judges who fear being overruled for barring late-made arguments. Either of those is buried in an unreported opinion.
One last comment, doesn’t the body of CAFC rulings include some salutations about patents being imbued with a public right, one that arises from the Patent Clause, and is secured by a statutory presumption of validity. How can all of that become subordinate to a local rule, which works a forfeiture of patent rights.