The Sedona Conference on Damages and Damages Disclosure

The Sedona Conference Working Group 9 (WG9) has published its Commentary on Case Management of Patent Damages and Remedies Issues: Section on Proposed Model Local Rule for Damages Contentions, and  another document titled Patent Damages Hearings, both of which are available for download from the organization's website (here).  I'm inclined to think that early disclosure of damages contentions, as contemplated for example in recent amendments to the Patent Local Rules of the Northern District of California, is a good idea; and I'm particularly intrigued by the second Sedona document's Best Practice Number 10, which would appear to adopt (for purposes of pretrial damages hearings) a variation on the "hot-tubbing" or concurrent evidence procedure that is sometimes used in Australia, Canada, and the U.K.  (For previous discussion of hot-tubbing on this blog, see here.)

In addition, the Sedona Conference is hosting a webinar on June 13 from 1-2:30 p.m. on Early Consideration of Patent Damages.  Here is a link for readers interested in the webinar, and here is the description:

Damages issues have received substantial attention from the Federal Circuit over the past several years, as the Court has attempted to provide guidance to litigants and the district courts in the face of public concerns about eight- and nine-figure patent damages awards. This attention has led has led to the rapid evolution of a complex area of law, and - perhaps counterintuitively - unpredictability about the viability of damages theories. To assist litigants and the courts, the Sedona Conference's Working Group 9 on Patent Damages and Remedies (WG9) developed a Proposed Model Local Rule for Damages Contentions, which provides for an early exchange of damages-related information to enable the parties to develop and disclose their damages theories earlier than might otherwise occur, and thus to allow for orderly Daubert and pretrial processes.

In furtherance of this effort, WG9 has also developed a framework for early damages-focused hearings (to be published shortly), to allow for a pre-Daubert discussion of damages theories with the court in order to clarify and narrow and damages-related disputes, and to simplify Daubert and pretrial proceedings. These efforts of WG9 have garnered significant attention from the patent community. Indeed, the Northern District of California has adopted a rule reflecting a substantial portion of WG9's Proposed Model Rule on Damages Contentions, and other courts have considered The Sedona Conference's Principles and Best Practice recommendations in individual patent litigation matters as well.

This webinar broadens the discussion so that litigants and courts around the country may gain the exposure to these proposals and consider how they can be incorporated into appropriate cases to bring efficiencies to patent litigation.