It Solves, the PLRB would streamline the patent litigation process

The proposed administrative review would be an automatic process that would occur immediately after the filing of a patent suit in district court. This automatic review might be viewed as a variant of the required review of a qui tam False Claims Act complaint by the Department of Justice 221 or the [*1826] requirement of filing employment discrimination claims with the Equal Employment Opportunity Commission before resorting to the courts. 222 One can imagine a number of ways of structuring preliminary administrative review, but this Article proposes a specific framework as a starting point for discussion.

The proposed process would work as follows. Upon the filing of a patentin-fringement suit in a district court, 223 the PLRB would be notified. Unless all parties to the district court suit opted out, the PLRB would conduct a paper hearing in which parties would be allowed to file documentary arguments and evidence relating to questions of patent claim construction, infringement, validity, and enforceability. The PLRB's approach to claim construction during this hearing would follow that of the district courts. Although attorney representation would be advised, PLRB proceedings would improve access to justice by allowing parties to present relevant materials either pro se or through qualified non-attorney representatives such as, in a business entity's case, their chief officers or owners. 224

Including time for party filings, the PLRB would have one hundred eighty days from notification of suit to issue its determinations. 225 With consent from all parties, however, the PLRB would be able to extend this time for review. The district court would automatically stay proceedings during the administrative review process although, on a showing of good cause, the district court would have power to lift the automatic stay in order to consider a motion for a preliminary injunction, temporary restraining order, or dismissal under Federal Rule of Civil Procedure 12(b)(6). Under existing law, the PLRB might trigger a further stay of district court proceedings by causing the initiation of postissuance review at the USPTO. 226

[*1827] For purposes of PLRB review, the parties would be expected to focus on issues with respect to which they believe they can establish a decisive case through already available documentary evidence, affidavits, and written argument. There would be no provision for discovery. In this way, the hope is that PLRB review can prioritize the presentation of what parties believe to be crucial and already available evidence on potentially decisive issues, rather than wait to present such evidence and associated argument after discovery. 227

Within the original or extended stay period, the PLRB would register an affirmative conclusion or lack thereof in accordance with a "clear and convincing plus" standard. The PLRB would rule either that limits on time and evidence do not permit a substantive determination in favor of either side or, alternatively, that, on at least one pertinent question, the evidence at hand clearly and convincingly establishes the correctness of one particular position and there is no substantial likelihood that additional evidence will lead to a different conclusion. 228 For example, a patent holder might produce documentary evidence of the workings of an accused infringing device that, in the absence of any suggestion of potentially contradictory evidence from the accused infringer, the PLRB would hold clearly and convincingly establishes that the device infringes--or at least satisfies one or more key elements of relevant patent claims. In another case, an accused infringer might produce documentary evidence that, in the absence of any suggestion of potentially contradictory evidence from the patent holder, the PLRB would hold establishes clearly and convincingly that an accused infringing device does not infringe because it does not satisfy at least one requirement of relevant patent claims. 229

With respect to many disputable issues, the PLRB would likely register a lack of any affirmative conclusion if asked for its opinion. Consequently, to avoid wasted effort and to maximize chances of an overall favorable PLRB judgment, a party would have an incentive to be selective in asserting its best arguments. The PLRB could encourage efficiency-promoting prioritization by regulating the length of filings presented to it.

[*1828] The PLRB would generally publish its reasoning and determinations, 230 and the PLRB's opinions and judgments would be admissible in court. On the other hand, to avoid constitutional concerns with jury rights and the prerogatives of Article III courts, 231 the PLRB's determinations on substantive matters would only be advisory. There would be no judicial review of the PLRB's determination independent of continuation of the original district court action or analogous proceeding. The trial court would conduct a trial de novo, but the courts would give the PLRB's determinations weight in the manner prescribed by Skidmore v. Swift & Co. 232 for agency statutory interpretations. In other words, the trial court would give those determinations weight in accordance with the PLRB's expertise, its care in deliberation, the unanimity or consistency of its judgments, and the quality of evidence before it. 233 The provisions for trial de novo and restriction of judicial review otherwise would be statutorily specified, thus overriding any otherwise applicable default provisions on judicial review under the Administrative Procedure Act. 234

PLRB determinations would have effects beyond their ability to influence later court decisions. First, if the PLRB found that, under the "clear and convincing plus" standard, a patent claim is invalid based on grounds that are a permissible basis for USPTO post-issuance review, the PLRB's determination would give the successful challenger a right to post-issuance review, as opposed to the mere opportunity to petition for such review. Even if the challenger does not exercise this right, the USPTO would automatically receive notice of the PLRB's determination and could decide sua sponte to launch an ex parte reexamination. 235 Second, if a party uses court proceedings to challenge an adverse PLRB determination and if the party loses that challenge on grounds identical to those invoked by the PLRB, that party would presumptively have to pay the opposing side's associated additional court costs and reasonable attorney [*1829] fees. Third, and relatedly, if a party loses before the PLRB, the party might need to pay costs and, in exceptional cases, reasonable attorney fees associated with the PLRB proceedings. Fourth, PLRB determinations could factor into later assessments of whether district court litigation involves a violation of Federal Rule of Civil Procedure 11 or whether a court should enhance patent-infringement damages because of egregious infringing behavior. 236 Finally, if the PLRB rules in favor of a party that lacks the capacity to appear in court to defend itself, the PLRB would intervene in associated district court proceedings to make its reasoning and determination part of the record and, thus, a potential basis for denying judgment against the non-appearing party.