The Advisory Council for the United States Court of Appeals for the Federal Circuit has been a vital source of knowledge exchange and dissemination as it relates to clarifying and streamlining judicial procedures. In its latest model order, the council has turned an eye toward patent claims and prior art in an effort to further reduce the administrative burden on intellectual property litigants and courts.
"According to one study, litigated patents contain an average of 24 claims and cite 31 prior art references," council members noted. "There is a consensus that the number of asserted claims, claim terms and prior art references in patent cases are often problematically excessive."
As with any model order, a court can choose to dismiss, modify or adopt the council's recommendations at its own discretion. But according to The National Law Journal, this latest slate stands a relatively high chance of implementation considering it calls for appreciable concessions from both plaintiffs and defendants.
In specific, the model order calls for limitations at two key junctures. Patent holders would be limited to no more than 10 claims from each patent, and no more than 32 claims total, during preliminary trial procedures. At the point, defendants could respond with 12 or fewer prior art references associated with each patent, and no more than 40 total. Before the trial ultimately begins, each of those four listed figures would be halved.