The US Patent and Trademark Office (USPTO) has requested comments from the public on whether the US should provide a “small claims” proceeding for patent disputes. See 77 Fed. Reg. 74830.
The USPTO wants comments be emailed by March 18, 2013, to [email protected]. and welcomes inputs from all interested members of the public with no restriction on nationality.
It is no secret that patent litigation in the US is expensive, with cases commonly costing US$ 3 - 10 million in legal fees from start to finish. Perhaps the high cost is justified given that the US is the largest market in the world for many technologies. This is little comfort to SMEs, however, for whom US patent litigation is a daunting financial proposition.
It is not surprising that US officials are giving some attention to this issue and possible solutions. The USPTO issued on December 18, 2012, a document titled “Request for Comments on a Patent Small Claims Proceeding in the United States” listing 20 issues upon which comments are requested, including whether or not such a proceeding is actually needed, whether the right to a jury should be waived, how attorney’s fees should be allocated, and whether an injunction should be available as remedy.
However, the word “discovery” appears nowhere in the document, a curious omission, given that expansive discovery in the US is the root cause of the high cost of patent litigation. The document does request comment on “What the preferred case management characteristics that would help to control the length and expense of a small claims proceeding should be”.
The idea of a small claims patent court in the US has been around for at least 20 years, and was endorsed by the American Intellectual Property Law Association (AIPLA) and American Bar Association (ABA) as early as 1990.
Perhaps the UK caused the US to renew its interest. The UK has already moved to implement small claims proceedings for IP and this year launched a small claims track for IP claims of up to £5,000 in a “Patents County Court (PCC)” based in London. The PCC focuses on copyright, registered trade mark, and unregistered design infringement cases, although patent cases are also permitted.
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