The Patent Case Management Judicial Guide (PCMJG) is a treatise designed for federal judges and their law clerks. Unlike more traditional law treatises, which are organized around the structure of a statute or body of jurisprudence, this treatise is constructed around the stages of patent litigation. This enables judges and law clerks to quickly master the distinctive phases of patent litigation. The Federal Judicial Center publishes the PCMJG for federal judges. Clause 8 Publishing publishes the PCMJG for distribution to the general public. A digital version of the PCMJG is available at SSRN. The PCMJG is also available through Lexis.

As the history of the project explains, the PCMJG grows out of judicial legal education programs organized by Professor Peter Menell dating back to the late 1990s, a period when patent litigation became especially active. Professor Menell continues to organize these judicial education programs in conjunction with the Federal Judicial Center.  This treatise codifies the knowledge that has been gained through these programs and from the experienced practitioners, jurists, and scholars involved with these education programs. The Third Edition updates and expands the prior editions.

Patent Case Management Judicial Guide (3rd Edition)

The PCMJG3d is divided into three volumes.

Volume I covers Pretrial Case Management

Chapter 1 Overview of the Patent System and General Principles for Effective Patent Case Management
Chapter 2 Early Case Management
Chapter 3 Preliminary Injunction
Chapter 4 Discovery
Chapter 5 Claim Construction
Chapter 6 Summary Judgment
Appendix A Glossary
Appendix B Acronyms
Table of Cases

Volume II covers Trial Case Management as well as various specialty patent litigation areas and a patent law primer

Chapter 7 Pretrial Case Management
Chapter 8 Trial
Chapter 9 Posttrial
Chapter 10 ANDA and Biologics Cases: Patent Infringement Actions
Involving FDA-Approved Drugs
Chapter 11 Design Patents
Chapter 12 Plant Patents
Chapter 13 Patent Suits Against the United States
Chapter 14 Patent Law Primer
Appendix A Glossary
Appendix B Acronyms
Table of Cases

Volume III contains appendices with useful patent litigation resources

Appendix A Glossary
Appendix B Acronyms
Appendix C Patent Resources
Appendix D Patent Local Rules
Appendix E Model Patent Jury Instructions
Table of Cases

History of the Patent Case Management Judicial Guide

As the number, size, and complexity of patent cases have grown throughout the United States over the past several decades—paralleling expansion in the role of high technology enterprises in the U.S. economy—the need for a comprehensive, user-friendly, and practical judicial guide for managing patent cases has become increasingly apparent. Although similar in many respects to other forms of complex civil litigation, patent cases pose distinctive case-management challenges. Patent cases feature complex and dynamic technological facts to a degree rarely encountered in most other areas of litigation. Furthermore, they employ unique procedures (such as claim construction hearings) that affect and interact with other aspects of the case (such as summary judgment motions and expert reports) in ways that create unusual scheduling and substantive complexity. In addition, patent cases often entail distinctive and difficult discovery issues, extensive use of experts, and particularly complex dispositive and pretrial motion practice.

Because of the decentralized, general jurisdiction structure of federal courts in the United States, much of the experience relating to managing patent cases is siloed in particular judicial chambers. As one jurist aptly noted, best practices for patent case management have been transmitted largely through word of mouth. Given the crowded, diverse dockets of federal courts, the accessibility and reliability of such knowledgeis far from ideal. Judges in some districts have partially codified recommended practices in the form of Patent Local Rules, standing orders, and patent jury instructions, but these documents do not address the full range of distinctive challenges posed by patent litigation. Furthermore, such judicial wisdom continues to evolve. Recognizing these patterns, the original authorship team (Professor Peter Menell, Lynn Pasahow, Matthew Powers, and James Pooley) undertook in 2006 to survey the range of approaches and perspectives on patent case management, foster discussion and analysis of patent case management techniques, and develop an authoritative guide for judges, law clerks, practitioners, and patent and civil procedure professors and scholars.

This project grew out of an annual series of intellectual property education programs that Professor Peter Menell has organized since 1998 for the Federal Judicial Center. It began by collecting available materials relating to patent case management and constructing a comprehensive outline. Over the next year, the team drafted, revised, and edited the principal chapters of the guide. They first vetted a draft at the FJC intellectual property conference in June 2007. They then undertook a substantial revision of the manuscript. Between December 2007 and August 2008, the authors met with district judges and magistrate judges in the most active patent jurisdictions around the nation—the Northern District of California, the Central District of California, the District of Delaware, the Northern District of Illinois, the District of New Jersey, the Southern District of New York, the Eastern District of Texas, and the Eastern District of Virginia—as well as the Federal Circuit to discuss the overall project and refine the specific case-management recommendations. Such sessions explored the range of practices and honed the best practices set forth in this Guide. The authors also assembled an advisory board of leading patent litigators and academics to provide input on the project.

The first edition of the PCMJG, published in 2009, is available here.

The second edition of the PCMJG, published in 2012, is available here.

Given the dynamism of the patent system and patent litigation, the authors plan to update the PCMJG on a regular basis.

Patent Case Management Judicial Guide: Authors

Peter S. Menell is the Koret Professor of Law and Director of the Berkeley Center for Law & Technology at University of California at Berkeley School of Law.

Lynn H. Pasahow is a partner in the Litigation Group at Fenwick & West.

James Pooley is senior counsel at Orrick, Herrington & Sutcliffe.

Matthew D. Powers is a partner at Tensegrity Law Group.

Steven C. Carlson is a partner at Kasowitz, Benson, Torres & Friedman.

Jeffrey G. Homrig is a partner at Latham & Watkins. Geroge F. Pappas is a partner at Covington & Burling.

Carolyn Chang is a partner at Fenwick & West.

Colette Reiner Mayer is a partner at Morrison & Foerster. Marc David Peters is a partner at Morrison & Foerster.

Collaborating Contributors

Anita Choi (Morrison & Foerster) (Chapters 11 and 12)

John Fargo (U.S. Department of Justice) (Chapter (13)

Michael Sawyer (Morrison & Foerster) (Chapter 13)

Allison A. Schmitt (law clerk, Judge Kathleen O'Malley (U.S Court of Appeals for the Federal Circuit)) (Chapter 10)

Michael R. Ward (Morrison & Foerster) (Chapters 11 and12)

Patricia Young (Latham & Watkins) (Chapters 6 and 7)