Welcome to day 2 of the Patent Law Institute! The live blog will continue throughout the day, as will the live tweeting (@plipatentlaw, #PatentLawInstitute). The first panel we are reporting from this morning is entitled, “Litigating Against Non-Practising Entities,” and features P. Anthony Sammi, Partner at Skadden, Arps, Slate, Meagher & Flom LLP concentrating his practice on litigating intellectual property cases, particularly high-technology patent cases, at the trial level. Sammi shares proven strategies for defeating NPEs and explains the difference about litigating against an NPE. If you missed out today, you’ll be able to see this panel live in San Francisco on March 19-20th. Here are the highlights:

• In the past, the presumption that most NPEs were not patent savvy was some what true. Today, not so much. They are very very good litigators in general. We all know patent litigation is simply a subset of litigation. At the end of the day, you’re in a federal litigation in front of a jury. Don’t’ underestimate an NPE when it comes to litigation.
• Choose your battles wisely: be prepared to go to litigation when dealing with an NPE. Median time to trial in a patent case is 2.5 years. Consider if there is a chance to get out early.
• If you have a competitor case and you have discovery, classic NPEs won’t really have anything to give over.  Because they don’t have the same market concern, the plaintiff NPE won’t be able to provide a quid pro quo in the discovery process. As a producer, your client will have more to give up.
• If you find yourself representing a defendant against an NPE and you’re not the only defendant, the plaintiff may be building a war chest such that the first co-defendant to settle will likely get the best deal. There are risks to settling early, however. Other NPEs may see your client as an easy target/quick nuisance settlement.
• Litigation in the Eastern District in Texas may result in a “home team” advantage for NPEs where the jury pool may be more likely to be partial to corporations that have invested heavily in their local communities, so there are benefits to venue transfer. Try to transfer to an area more convenient for the defendant and its attorneys.
•  A reexamination win with the PTO will benefit a smart plaintiff to parade in front of the litigation jury. 
• Litigation against an NPE won’t rely so much on patent law as it will on the underlying federal litigation procedure and skill.

Tags: federal litigation, NPEs, P. Anthony Sammi, Patent Law Institute 2012, Patent Litigation, patent trolls, PLI, USPTO

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