ORANGECOUNTYBUSINESS JOURNALPage 1$1.50 VOL. 35 NO. 28 www.ocbj.com JULY 9-15, 2012

nterviewer, Samantha McDermott, connected with two prominent attorneys, Jerry Huang,the general counsel of Vizio and Yuri Mikulka, co-chair of the IP Litigation Department atStradling about their thoughts on the Central District, judges and what the patent pilot pro-gram means for current and future cases.

McDermott: What do you think are the best venues for defendingand/or bringing a patent litigation action? Why?

Huang: I donʼt believe that there are any absolute best venues, eitheras a plaintiff or as a defendant. Best venues depend on the objective ofthe litigation and a variety of related factors. Speed to trial, sophisticationof jurists and jury demographics, status of the opposing side, are some ofthe logical factors to consider. The same characteristics of a particularvenue may not necessarily be beneficial in all instances. In some cases,depending on budget and/or strength of the patent(s) at issue, a patentholder may favor a venue with a short time to trial against certain type ofdefendant. Conversely they may prefer a slower venue against a differenttype of defendant. With the limitation on joinder provision under theAmerica Invents Act of 2011, full impact on case filings in traditionallyfavored jurisdictions remain to be seen. In addition to California, Delaware and Texas, the ITC isnow becoming a popular forum for patent disputes.

Mikulka: I like to file in a forum where the judges have experience with patent cases. Forexample, the judges in the Central District of California, the Northern District of California,Southern District of New York, District of Delaware, and the District of New Jersey are morefamiliar with patent law than other courts. One other thing to consider is the pilot patent pro-gram. This program was recently implemented in fourteen District Courts across the country,including three here in California. It was designed to foster patent expertise within the Districtsthat see the most patent cases. In venues with the program, I will either get a judge that has vol-unteered to be a pilot judge or I will get a judge who is interested, and has decided to keep thecase. Either way, Iʼll be in good hands.

McDermott: Yuri just talked a little bit about the pilot patent program. As you know, threeDistrict Courts in California were selected to participate in the program which just took effect onJanuary 1, 2012. Do you have experience with any of those judges? If so, what have your expe-riences been like?

Mikulka: The judges who are part of the pilot program in the CentralDistrict are Honorable Andrew J. Guilford, Honorable S. James Otero,Honorable Otis D. Wright II and Honorable George H. Wu.

I have found them to be reasonable, fair and patient, but are extremelybusy especially given the recent budget cuts. More than ever, they willexpect the parties to informally resolve issues and narrow the disputedissues before appearing for trial. For instance, they will not hesitate toreject pretrial statements that deviate from local rules or include too manydisputed evidentiary issues that the parties should have worked outbeforehand.

Huang: The Honorable Judge Andrew Guilford presided over two ofmy recent patent cases. Both matters have been successfully resolved,and the experience was positive. Judge Guilford was very fair, highlyskilled and effective in that process.

McDermott: Do you think those judges are patentee-friendly or defendant-friendly? Why?

Mikulka: One of the reasons that patentees favor the Central District is the lack of patent localrules such as those adopted in the N.D. Cal. Local rules may drive up the cost of litigation aswell as slow down the litigation – which may also contribute to the Central Districtʼs speediertime to trial as compared to other districts. The lack of local rules, however, require that the par-ties are more proactive in coordinating the case. Overall, I think Central District is a popularplace to litigate for either party because the judges are known to be sophisticated, neutral andwell-versed in patent litigation.

Huang: I agree that the Central District of California has a very active patent docket becausepatentees may be attracted to speedier time to trial, highly sophisticated jurists and a diversejury population. However, in my experience, such popularity with the Central District is not sup-ported by the notion that the bench is either patentee-friendly or defendant-friendly.

McDermott: Do you think that the pilot patent program will lead to an increase or decrease inthe number of patent cases being filed in the Central District of California? Why?

Huang: In my view, we should see an increase to the filings of patent cases in the CentralDistrict of California due to the pilot patent program. In addition to the element of predictabilitymentioned by Yuri, the program should also result in a more efficient process and effectivejurists.

Mikulka: Since the Central district still does not have local patent rules and there is no imme-diate plan to adopt them, I think the Central District will continue to be a busy and popular venuefor patent litigation. However, if the judges begin to adopt the N.D. rules or patent local rules likethe one that Judge Guilford is currently working on, then it remains to be seen whether plaintiffswill continue to prefer the Central District to other districts.

McDermott: Do you think that the Central District will adopt rules similar to the N.D. localpatent rules? If not, how might the rules be different?

Mikulka: Many judges in the Central District are opposed to adopting local patent rules.Judge Wright uses modified N.D. Cal. Local patent rules and Judge Otero uses the N.D. rulesonly in complex patent litigations. Judge Guilford is working on his set of rules, and is advocat-ing that local patent rules be adopted in the Central District. Ultimately, I think the Central Districtwill not adopt local patent rules, and will proceed on a judge by judge basis – where each judgewill adopt their own patent rules.

Huang: I agree with Yuri. I do not see the full adoption of N.D. local patent rules in the CentralDistrict. The objectives of the pilot patent program are to find better, more innovative ways tomanage the patent docket in the Central District. The patent litigation landscape across thecountry has transformed significantly since the last decade. The America Invents Act of 2011 willcertainly further complicate the path of the pendulum swing that is occurring in the world ofpatent litigation, and I believe that there is more appetite to embrace change. If uniform localpatent rules were adopted in the Central District, I believe that the rules would offer significantlymore flexibility as compared to the Northern District.

McDermott: You donʼt always get to choose where you will litigate. If you did have a choice,would you choose to litigate in the Central District?

Huang: For many of the same reasons already discussed, the Central District is an attractivevenue. Having a large talent pool in the local legal market further supports the appeal of litigat-ing in the Central District.

Mikulka: I am very comfortable with the judges in the Central District and now with the pilotpatent program feel even more comfortable that our cases will be decided by a judge that isfamiliar with patent law and that is interested in my case. The other consideration is that theCentral District can be more cost effective because cases are disposed of quicker here than inother Districts. It also helps that judges, such as Judge Guilford, tend to be flexible in allowingthe parties to set a reasonable schedule.

McDermott: Iʼd like to thank both of you for taking the time to share your views with us.

For more information contact Yuri Mikulka at 949.725.4000 or ymikulka@sycr.com.

IJerry Huang, GeneralCounsel of Vizio

Yuri Mikulka, Co-Chairof the IP LitigationDepartment atStradling

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Reprinted with the permission of the Orange County Business Journal