The USPTO will evaluate in 2013 whether the US should develop a small claims proceeding for lower-value patent enforcement actions. In the US, all patent infringement cases are heard in Federal District court and the costs of litigation are well known to be six figures or higher. With these legal costs, a patent lawsuit involving less than $1,000,000 at stake is rarely economically feasible. In doing this evaluation, the USPTO will collect information from various sources, including public comment, as to whether there is a need and desire for this type of proceeding, in what circumstances, and what features this proceeding should possess ( subject matter jurisdiction, venue, case management, appellate review, available remedies, and other procedural and constitutional issues). There are many questions that need to be addressed. Where should such small patent claims cases be brought? Should there be one or more small patent claims courts around the country? How will jurisdiction be obtained over foreign businesses who allegedly are infringing US patents? Who and how will claims construction be done? How will evidence and pretrial disclosure be handled in this new forum?
Such a proceeding might level the playing field a bit for small companies and independent inventors with good patents but limited resources for legal enforcement activity. It might also increase the perceived value of applying for patent protection. Many inventors now forego patent protection because the cost of enforcement is a barrier to effectively using the patent rights to prevent copying. What will be interesting is how such a proceeding will affect the litigation costs charged by many patent litigation firms. Contingency fee representation might become more commonplace in patent litigation.
What thoughts do you have about such a small patent claims proceeding?