Monday, December 13, 2004

PRIMER ON PROTECTIVE ORDERS: One of the often-disputed topics that arise during patent litigation stem from protective orders and their proper scope. Michael Rader provides a concise breakdown of some of the considerations that in-house counsel need to make when considering a protective order. Some of these considerations include:

  • Does the opposing party have in-house patent counsel? Many protective orders allow for access to confidential information by a single in-house attorney. If the opposing party's legal department does not include a patent attorney, this may mitigate patent-related risk in some cases.

  • How extensive is the opposing party's portfolio of pending patent applications? If the opposing party does not have pending applications directly covering the relevant technology, the risk of patent claims being crafted to ensnare the company's new products is mitigated. Information about the opposing party's patent portfolio can be gleaned from publicly available sources or requested during negotiations over the protective order.

  • How much of the company's confidential information would, in fact, aid the opposing party's patent prosecution efforts? For example, if the company's products are readily reverse-engineered, access to confidential technical specifications may do little for the opposing party's patent attorneys.

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