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Bar News - June 21, 2013


Intellectual Property Law: Reasons to Litigate Patent Disputes in the District of NH

By:

Though I practice in several states, I have identified some reasons for patent suits to be litigated in the District of New Hampshire, provided there are no concerns as to personal jurisdiction or venue. It’s not a comprehensive list, and some of my fellow bar members may disagree with me, but I hope it will open up conversation with out-of-state attorneys and existing and potential clients.

Patent Rules

Given the intensive fact discovery, expert witnesses, and particularized showings inherent to patent litigation, not to mention the expense those considerations create, it might surprise you to know that the District of New Hampshire is one of only 24 US District Courts nationwide (by my count) to have district-wide patent local rules or procedures. New Hampshire’s Special Patent Rules provide all litigants in patent cases filed on or after Dec. 1, 2011, with a helpful, predictable roadmap, while permitting necessary departures in exceptional circumstances.

While outcomes differ, the framework for analyzing each case will have some commonalities. To draw an analogy to actions in state court, consider the relative predictability offered (at least in principle) by the Rules for Regulating the Practice in Domestic Relations and the Business and Commercial Dispute Docket’s Standing Orders. Similar considerations of uniformity can and should drive decisions about where to file patent litigation – or if not filed in New Hampshire initially, why transfer to this jurisdiction may be preferable.

Judicial Alacrity

Time is money. Knowing that a costly patent litigation case will be decided without delay by engaged judges has, well, patent importance. While there are a number of indicators, I’ll touch on three that come to mind.

First, I’ve generally found the judges in this District to be intellectually engaged and committed to seeing that cases be given prompt treatment with due regard to specific circumstances. This practice has gained demonstrable importance under the court’s current leadership. A judge’s personal involvement at pretrial conferences and attentiveness to seeing that cases not languish between initial filing and summary judgment bodes well for patent litigants of all stripes.

Second, the most recent data available through the Civil Justice Reform Act (CJRA) show that the judges in the District of New Hampshire are running a tight ship. Information found in the September 2012 CJRA Report indicates that: (a) only six cases in the District have been pending more than three years, none of which are patent cases; (b) there are no motions that have been pending more than six months without decision; and (c) there are no bench trials that have remained undecided more than six months. Those are enviable statistics by any measure, and truly remarkable for patent litigation, which unfortunately moves at a glacial pace elsewhere.

Third, the Court seems to recognize that pre-trial consolidation of related patent cases can benefit plaintiffs and defendants alike. The new joinder and consolidation restrictions in 35 U.S.C. § 299 have the potential for abuse and the imposition of undue burdens – for all litigants. Yet, the Court’s strategic application of its authority under Local Rule 42.1(c) has allowed it to corral interested parties at the beginning of litigation.

Keeping Parties on Best Behavior

Hopefully, the points raised thus far have made in-state and out-of-state readers interested in pursuing patent litigation in the District of New Hampshire. To clear up any doubt, though, I offer a few more considerations that are somewhat unique to litigants in patent disputes in New Hampshire and that have the potential for keeping parties on good behavior.

First, although most states recognize civil malicious prosecution (by one name or another) as an actionable tort, New Hampshire is perhaps the only state to recognize malicious defense as well. The presence of this tort, at least in this author’s opinion, creates an even playing field for plaintiffs and counterclaimants (whether patent owners or alleged infringers seeking declaratory judgments) to leverage truly meritorious positions, knowing that any chicanery on the part of an opponent could have severe consequences.

Put another way, even if a litigant is unable to establish a violation of Fed. R. Civ. P. 11, 28 USC § 1927, or 35 USC § 285 – which can be a tall order, for anyone who has attempted to do so – in a manner sufficient to obtain attorney’s fees, there remains the possibility that a claim for malicious prosecution or malicious defense could be brought in New Hampshire state court, after the termination of the federal court proceedings.

Of course, that’s strong medicine that could be avoided from the outset, by adherence to the ideal that New Hampshire attorneys have the responsibility and privilege of advancing litigation in a common sense, expeditious, and courteous fashion – even when the financial stakes of litigation are on the line. Such ideals of collegiality and mutual respect, without brinksmanship, still have value in New Hampshire, as reflected, for example, in the NHBA’s Litigation Guidelines and repeated admonitions from the US District Court’s judges to follow local practices scrupulously, whether lead or local counsel.

The next time you and your client have a patent litigation case to file, or are faced with a case pending in another district that might warrant transfer to another venue, consider the District of New Hampshire. It’s my hope and expectation that you’ll be glad you did.


Zachary R. Gates is an associate at Burns & Levinson LLP in Boston and is chair of the NHBA Intellectual Property Section.

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