Advantages of Early Discovery Claim Construction Combined with Immediate Appeals to the CAFC on an Interlocutory Basis.

¶ 51Early discovery claim construction coupled with claim construction orders that are immediately appealable to the CAFC on an interlocutory basis achieves numerous advantages. First, setting the timing of claim construction enhances uniformity by solidifying the claim construction schedule in all instances of patent litigation. Moreover, uniformity is enhanced because all district courts operate under the same claim construction schedule. Such scheduling uniformity also discourages forum shopping. Professor Kimberly Moore concluded that speed of adjudication is one of many factors that results in forum shopping, particularly by patent holders filing infringement suits.103 Additionally, Parsons et. al noted that the early scheduling conferences in the District of Delaware contribute to that district's status as a patent litigation center.104 Similar evidence can be logically inferred in the Northern District of California, where early scheduling is the norm.

¶ 52Second, early discovery claim construction combined with interlocutory appeals to the CAFC fosters greater certainty at a significantly earlier stage in the litigation. Once claim construction is settled by the CAFC, the case is remanded to the district court to continue formal discovery, expert reports, summary judgment, etc. Because claim construction is settled before discovery is concluded, the parties are better able to solidify their strategic position at an early stage.

¶ 53Third, the proposed solution fosters judicial efficiency in several ways. Early solidification of claim construction encourages the parties to use alternate dispute resolution at an early point in the dispute which can induce both sides to settle at an early stage. Also, early claim construction procedures encourage greater due diligence before filing suit which may result in more pre-filing settlements while reducing the number of patent infringement suits filed.

¶ 54 Although early discovery claim construction may significantly increase the cost of early stage patent litigation, the onset and growth of contingency patent litigation helps to ensure that all parties are given a chance. Furthermore, Malek indicates that early discovery claim construction is the only way "to open the door to the patent litigation process" to small, individual inventors who lack wealthy investors.105 Also, this uniform solution creates additional efficiency since both the parties and the court need not spend time and effort negotiating scheduling of claim construction. In addition, the resultant uniformity in scheduling of claim construction significantly reduces the evils of forum shopping. Finally, early settlement of claim construction reduces future appeals.

¶ 55Fourth, the proposed solution maximizes the accuracy of patent claim construction. In the very rare instances that discovery proves that an alternate claim construction should have been made, the CAFC can revisit the issue once the judgment of the district court is certified. Because the CAFC is reviewing its earlier determination to see if it was clearly erroneous, there is little threat to judicial economy.

¶ 56Though the proposed solution will significantly raise the burden placed upon the CAFC, a balancing test reveals that early discovery claim construction decisions which are immediately appealable to the CAFC are comparatively more economical than the present system. Critics of the current system of patent litigation contend that the current model is too expensive, too wasteful, and results in too much uncertainty.106 At present, a party seeking to appeal its claim construction order must either stipulate to infringement, or waste significant financial resources of both the judiciary and the parties on a trial which "rolls the dice." Presumably, the claim construction in these cases is generally appealed anyway.107 Interlocutory appeals avoid this troublesome situation. The balance also favors the proposed solution since the increased settlement rate will lighten the load of the district courts, resulting in enhanced efficiency. Thus, early discovery claim construction that allows for interlocutory appeals to the CAFC yields numerous advantages.