Patent cases at the district court level are one of the most contentious forms of litigation. Scorched-earth litigation tactics, which include protracted discovery battles and overly aggressive motion practice, are common. Overzealous advocacy is not only costly to the parties but also burdens the courts and undermines the public interest in the timely adjudication and just resolution of patent disputes.

This article proposes a structural change to the manner of conducting patent litigation at the district court level that may potentially decrease the level of overzealous advocacy as well as enhance the court’s ability to take into account public interest considerations when adjudicating patent disputes. Specifically, this article proposes the inclusion of a neutral third party litigant in district court patent cases to represent the public interest, whereby the neutral litigant participates in all aspects of the case, including discovery, motion practice, trial, and settlement. The presence of the neutral litigant is expected to alter the litigation dynamics between the parties so as to disincentivize contentious behavior. With a neutral litigant, the game theoretic model of a typical patent case may convert from the Prisoner’s Dilemma, where noncooperation is the strictly dominant strategy, to the Hawk-Dove game, where both parties adopt strategies that mix noncooperation with cooperation.

This proposal is modeled after the practice at the U.S. International Trade Commission (ITC), where a patent dispute brought before that agency may include a dedicated ITC staff attorney who represents the public interest as a full party to the litigation, and whose presence acts as a moderating influence, especially in discovery disputes. The procedural mechanisms by which a district court may be able to accommodate a similar neutral litigant include intervention and the “litigating amicus” device. This article also evaluates the suitability of the Federal Trade Commission (FTC) as a neutral third party litigant in light of its expertise in evaluating intellectual property issues in view of competition policy.

Jeremy W. Bock , Neutral Litigants in Patent Cases, Berkeley Center for Law & Technology, (August 14, 2012)