1 The 2012 German & United States Bench and Bar Gathering—“A New Bridge Across the Atlantic”, Bench and Bar—Federal Circuit Bar Association (May 18, 2012), https://www.signup4.net/public/ap.aspx?EID=20121754E&OID=50.Google Scholar

2 See Feldges, Joachim & Kramer, Birgit, Patent Law, in Business Laws of Germany ch. 13, § 13:9 (Thomas Wegerich ed., 2012).Google Scholar

3 See Patentgesetz [PatG] [Patent Law], Dec. 16, 1980, Bundesgesetzblatt [BGBl. I] 1, as amended by the Law of July 31, 2009, §§ 81–85a (Ger.). (discussing nullity proceedings); see also id. at §§ 139–142b (discussing patent infringement).Google Scholar

4 Eur. Patent Office, Patent Litigation in Europe, 24 (2nd ed. 2010).Google Scholar

5 Id. Google Scholar

6 Feldges, & Kramer, , supra note 2, § 13:91.Google Scholar

7 Id. § 13:87.Google Scholar

8 See Peterreins, Frank, Global Patent Enforcement Strategy: Germany 9 (2011), available at http://www.fr.com/files/Uploads/Documents/Patent%20Litigation%20in%20Germany%20-%20July%2020%20-%202011FINAL.pdf.Google Scholar

9 Birde, Patrick J. et al., The Damages Test, 177 Pat. World 10, 11 (2005).Google Scholar

10 Patentgesetz [PatG] [Patent Act], Dec. 16, 1980, Bundesgesetzblatt [BGBl.]1, as amended by § 13 of the Act of Nov. 24, 2011, BGBl. I 2302, § 139(2).Google Scholar

11 Convention on the Grant of European Patents art. 64(3), Oct. 5, 1973, 1065 U.N.T.S. 255. Since 2009, there has been a concerted effort in the EU community to address patent litigation in uniform manner. See generally Recommendation from the Commission to the Council to Authorize the Commission to Open Negotiations for the Adoption of an Agreement Creating a Unified Patent Litigation System, SEC (2009) 330 final (Mar. 20, 2009), available at http://ec.europa.eu/internal_market/indprop/docs/patent/recommendation_sec09-330_en.pdf. Whether the Council will be able to create a Unified Patent Court amidst the political storm surrounding the proposed agreements has yet to be seen. See generally Hiroshi Sheraton & Matthew Jones, Draft Agreement on a Unified Patent Court—Summary and Implications, Bloomberg L. Rep Intell. Prop., Sep. 14, 2011, at 1, available at http://www.mwe.com/info/pubs/sheraton0911.pdf.Google Scholar

12 Eur. Patent Office, supra note 4, at 24.Google Scholar

13 Id. Google Scholar

14 Peterreins, , supra note 8, at 9.Google Scholar

15 See Feldges, & Kramer, , supra note 2, § 13:92.Google Scholar

16 Id. Google Scholar

17 Leahy-Smith America Invents Act, Pub. L. No. 112–29, 125 Stat. 284 (2011).Google Scholar

18 See Trilling, David W., Recognizing a Need for Reform: The Leahy-Smith Invents Act of 2011, 2012 U. Ill. J.L. Tech. & Pol'y 239, 246 (2012); see also Robert A. Armitage, Understanding The American Invents Act and Its Implication for Patenting, 40 AIPLA Q.J. 1, 93–109 (2012) (providing an overview of the changes the AIA made to the “inventor-related provisions” of American patent law).Google Scholar

19 Tran, Sarah, Patent Powers, 25 Harv. J.L. & Tech. 595, 617–26 (2012) (listing the various expansions the AIA makes to the USPTO's power, including the discretion to expedite qualifying patent applications).Google Scholar

20 For a broad perspective of what the industry—including former Chief Judge Paul Michel of the United States Court of Appeals for the Federal Circuit—felt about the enactment of the AIA, see America Invents Becomes Law—But IP Industry Largely Unimpressed, Wealth of Ideas (Gen. Patent Corp.) Sept. 2011, available at http://www.generalpatent.com/america-invents-act-passes-ip-industry-largely-unimpressed. The American panelists at the conference addressed many of the concerns surrounding the AIA, much of which is reported below.Google Scholar

21 28 U.S.C. § 1400 (2012). See Megan Woodhouse, Shop ‘Til You Drop: Implementing Federal Rules of Patent Litigation Procedure to Wear Out Forum Shopping Patent Plaintiffs, 99 Geo. L.J. 227 (2010) (providing a discussion of forum shopping in patent infringement litigation and proposals of new rules to reign in the behavior).Google Scholar

22 28 U.S.C. § 1400(b).Google Scholar

23 28 U.S.C. § 1391(c)(2).Google Scholar

24 Fed. R. Civ. Pro. 26.Google Scholar

25 “The U.S. may be the only country in the world that uses juries to decide patent cases.” Philippe Signore, On the Role of Juries in Patent Litigation (Part 1), 83 J. Pat. & Trademark Off. Soc'y 791, 794 (2001).Google Scholar

26 35 U.S.C. § 284 (2012). But see Christopher B. Seaman, Reconsidering the Georgia Pacific Standard for Reasonable Royalty Damages for Patent Infringement, 2010 BYU L. Rev. 1661, 1673–76 (noting the decline in the use of lost profits due to evidentiary and procedural obstacles courts have imposed upon plaintiffs).Google Scholar

27 See Pretty, Laurence H., Damages and Attorney Fees, in Patent Litigation ch. 9, § 9.10 (Practicing Law Inst., Oct. 2011) (discussing what constitutes “willful infringement”).Google Scholar

28 35 U.S.C § 284 (2012). But see Christopher B. Seaman, Willful Patent Infringement and Enhanced Damages after In re Seagate: An Empirical Study, 97 Iowa L. Rev. 417, 464–71 (2012) (noting that the award of “enhanced damages” is becoming less frequent, even where willful infringement is found).Google Scholar

29 The ITC gains jurisdiction over patent claims arising out of imports through 19 U.S.C. 1337(a)(1)(B)(i) (2012). See Colleen V. Chien, Patently Protectionist? An Empirical Analysis of Patent Cases at the International Trade Commission, 50 Wm. & Mary L. Rev. 63, 78–81 (2008) (discussing the rise of the ITC as an alternative forum in patent infringement litigation).Google Scholar

30 An E-Discovery Model Order, United States Court of Appeals for the Federal Circuit, http://www.cafc.uscourts.gov/images/stories/announcements/Ediscovery_Model_Order.pdf.Google Scholar

31 William Penn and William Mead were arrested in 1670 for preaching to a public assembly. Despite significant pressure from the Lord Mayor of London—who presided as judge over the trial—the jury entered a verdict of “not guilty.” The Lord Mayor confined and starved the jury in an attempt to force a change in the verdict. The jury refused, were found in contempt of court, and imprisoned. William Penn & William Mead, The Trial of William Penn and William Mead at the Old Bailey, 1670 (Headley Bros. 1908) (providing an account of the trial, from the perspective of the accused). The jurors of Penn's trial petitioned the Court of Common Pleas for a writ of habeas corpus, which granted the writ and ruled that a jury could not be punished for the decisions it reached. See Bushell's Case, 124 E.R. 1006 (1671).Google Scholar

32 See, e.g., Keeler, Ian, Is a Jury Composed of People Having Ordinary Skill in the Art? Reasons Why the United States Should Change Its Approach to the Obviousness Question in Patent Litigation, 21 Ind. Int'l & Comp. L. Rev. 253, 287–30 (2011).Google Scholar

33 See Alison, John R., The Role of Juries in Managing Patent Enforcement: Judge Howard Markey's Opinions and Writing, 8 J. Marshall Rev. Intell. Prop. L. Sp. 41, 44–45 (2009). See also Jeanne C. Fromer, Patentography, 85 N.Y.U. L. Rev. 1444, 1449 (2010).Google Scholar

34 See, e.g., Wells, Catherine P., Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication, 88 Mich. L. Rev. 2348, 2393–410 (1990).Google Scholar

35 See, e.g., Brodin, Mark S., Accuracy, Efficiency, and Accountability in the Litigation Process—The Case for the Fact Verdict, 59 U. Cin. L. Rev 15, 90–105 (1990); Indraneel Ghosh, The Road to Transparency: Abolishing Black-Box Verdicts on Patent Obviousness, 26 Berkeley Tech. L.J. 171, 190–93 (2011); Kimberly A. Moore, Juries, Patent Cases, & a Lack of Transparency, 39 Hous. L. Rev. 779, 797–801 (2002);Google Scholar

36 Whatever that means.Google Scholar

37 See Alison, , supra note 33, at 44. Judge Markey conducted informal surveys of all sitting trial judges, asking: The percentage of times the judge agreed with a verdict; the percentage of disagreed upon verdicts the judge found “plainly reasonable;” and the percentage of times judicial action was taken where a verdict was not “plainly reasonable.” As Alison notes, the results of those inquiries were, roughly and respectively: 90%, 50%, and 50%. These figures imply an unreasonable verdict requiring judicial intervention occurs around 2.5% of the time for all trials. Id. Google Scholar

38 See Gugliuzza, Paul R., Rethinking Federal Circuit Jurisdiction, 100 Geo. L.J. 1437, 1498 (2012).Google Scholar

39 See Fromer, , supra note 33, at 1458Google Scholar

40 See Gugliuzza, , supra note 38, at 1459.Google Scholar

41 See Fromer, , supra note 33, at 1458 (citing MedImmune, Inc. v. Genetech, Inc., 549 U.S. 118, 126–37 (2007) and eBay Inc. v. MercExchange, LLC, 547 U.S. 388, at 391–94 (2012) as examples of such ruling from the Federal Circuit).Google Scholar

42 Fed. R. Civ. Pro. 16 (allowing for judicial scheduling and management of proceedings before the court).Google Scholar

43 See Moore, Kimberly A., Forum Shopping in Patent Cases: Does Geographic Choice Affect Innovation?, 79 N.C. L. Rev. 889, 930 (2001) (noting that patent holders consider a variety of factors when choosing a litigation forum).Google Scholar

44 See Nguyen, Xuan-Thao, Justice Scalia's “Renegade Jurisdiction”: Lessons for Patent Law Reform, 83 Tul. L. Rev. 111, 156 (2008); see also Graham E. Taylor, Protecting Innovative Technology: Global Patent Strategies: The Big Picture, 32 Can.-U.S. L.J. 117, 129 (2006) (describing one strategy of litigating a patent issue in Germany because of perceived advantages that did, indeed, pay off).Google Scholar

45 See generally Paul, Angelique M., Turning the Camera on Court TV: Does Televising Trials Teach Us Anything About the Real Law?, 58 Ohio St. L.J. 655 (1997) (offering comments and critiques of televising courtroom proceedings, including the televised trial of O.J. Simpson).Google Scholar

46 I hold the mildly cynical view that the Apple-Samsung feud is more of a marketing ploy—played out in the drama of a courtroom and motivated by the personalities of the boards of both companies (most notably that of the late co-founder Steve Jobs)—rather than significant legal inquiries. For a summary of the events leading up to litigation and the strategies involved at trial, see Poorrnima Gupta & Dan Levine, Analysis: How Apple Overwhelmed Samsung's Patent Case Tactics, Reuters (Aug. 27, 2012), http://www.reuters.com/article/2012/08/27/us-apple-samsung-legal-idINBRE87Q02K20120827.Google Scholar