These efforts helped to persuade ITC administrative law judges to implement Markman hearings. At the urging of former Federal Circuit Chief Judge Paul Michel, I developed programs and orchestrated a patent investigation guide for the International Trade Commission.
These programs have educated much of the federal judiciary-including a substantial portion of district judges, magistrate judges, and bankruptcy judges-as well as involved Federal Circuit judges. That led to a 25 year collaboration leading annual week-long training programs, panels at FJC regional and national events, webinars, and the development of the Patent Case Management Judicial Guide (“PCMJG”). It was around this time, in 1997, that I reached out to the Federal Judicial Center to offer the Berkeley Center for Law & Technology’s assistance in training federal judges in the intricacies of intellectual property law and case management. Busy federal judges were all too happy to see the patent bar following these rules, thereby reducing the case management challenges. Although initially put forth as a voluntary case management model, practitioners quickly embraced these rules. Pre-trial “ Markman” hearings to construe claims became the norm, and with that, the development of the Northern District of California’s Patent Local Rules for managing patent cases led by Judge Ronald Whyte. With the Markman decisions of the mid 1990s, the Federal Circuit and the Supreme Court triggered a new patent litigation era. In addition, the newly established Federal Circuit was getting its sea legs and began to focus on the disarray. They saw advantages to trying patent cases to juries. With the growth of high technology patent litigation in the 1980s and early 1990s, a new breed of general litigators entered the fray. As a result, each patent case reinvented the patent litigation wheel to a significant extent. Experienced patent litigators, many of whom also prosecuted patents, brought their technical and litigation experience to the table. District judges managed these cases based on their general litigation background, which rarely extended to patent cases. Prior to the mid-1990s, patent litigation took place in district court silos. Menell, Koret Professor of Law Director, Berkeley Center for Law & Technology Faculty Director, Berkeley Judicial Institute University of California at Berkeley School of Law
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