CAFC Goes Nonprecedential to Prescribe Patent Litigation Practice Pointers for Counsel and Judges.

One past ‘practice in the vicinage’ of the SDNY was for a Judge to announce a rule in open court. Only those attorneys who happened to be there that day heard this new, unwritten rule. It worked for those firms that were in court everyday, but for those there occasionally, it could work a hardship. Who knew that this Judge required you to call his chambers 24 hours before appearing, or your client would be defaulted.

Today, in LSI Indus., Inc. v. Imagepoint, Inc., the CAFC put forth some practice rules for patent cases, but did so in a nonprecedential opinion. Why? The panel chastises litigation counsel for making “little effort to simply” the patent issues for the judge, and instead bulk-filing a “firestorm of issues and arguments” plus a “voluminous” reexam file wrapper. Then, as mentors to their members, the CAFC instructs that it “warrants our reemphasizing that an attorney has a duty …to aid in the fair and efficient adminstration of justice,” and then, cited its¬†earlier ruling that attorneys “are expected to assist the court …particularly in difficult cases involving complex issues of law and technology.” That’s what we,¬†the flock admitted to practice as trial counsel, were told to do.

Next, the panel opinion was politely uncomplimentary of the work of District Judge Wm. Bertelsman (W.D. Ky.). In the main, the panel reversed some of his claim term interpretations. That follows their review, a year ago, of his “erroneous approach in construing the claims,” in Byrne v. Black & Decker Corp. (CAFC 5/21/2007) which affirmed his conclusion, in another non-precedential ruling. The LSI panel notes his expressed “lack of familiarity with patent law.” It goes on to state its dislike for a district judge having “adopted [one party’s] proposed findings of fact and conclusions of law verbatim.” [Yeah, like that never happens.] The panel observes, nonprecedentially, that although “this practice is not prohibited, it is frowned upon.” That wholesale adoption can give “the impression that there was insufficient independent evaluation” of all the arguments of record. The best precedent cited in support of the panelists’ ‘frown’ and “impression” was a 9th Circuit case about TBS withholding royalties payable under Director Wm. Wyler’s 1958 contract to direct “Ben-Hur.” That’s IP, right?

So, if you weren’t in court today, you may’ve missed this practice pointer, but don’t worry, it’s nonprecedential and can’t be cited in another CAFC case.