Blueprint for Boston: Make it a patent-fight arena
Legal brainpower, wealth of experts could make city a magnet for complex cases
As a hub of invention and innovation, Boston is known worldwide for its universities, its hospitals, and its thriving technology sector.
If Boston lawyer Lee Carl Bromberg's vision becomes reality, it also may one day be a top national destination for the thousands of legal fights waged each year over pioneering, potentially lucrative technologies created in New England and beyond.
Spurred by an explosion in patent litigation in recent decades, Bromberg, president of the Boston Patent Law Association, wants to position the federal court in Boston as the go-to place for resolving disputes over patents, as well as copyrights, trademarks, and other intellectual property.
He believes Boston's legal brainpower, respected judiciary, and technology know-how make its US District Court uniquely suited to establish itself as a forum where patent cases are handled quickly and efficiently.
By doing so, it could join other federal jurisdictions that have become magnets for patent cases, such as the Eastern District of Virginia, called the "rocket docket" because it resolves most disputes within 18 months, and the Eastern District of Texas, known for its plaintiff-friendly outcomes.
And absorbing a greater share of the country's patent litigation -- the annual number of patent lawsuits filed in the United States roughly tripled between 1970 and 2004, to 3,075, according to a recent Boston University study -- could benefit both the legal community and local economy, Bromberg said. A typical patent case can cost several million dollars to litigate.
"We have tremendous resources in the Boston area for handling these cases, from talented litigators to great judges to experts in just about any field you want," said Bromberg, whose year-long presidency ends in December.
"I want to promote that and encourage the idea that the federal court in Boston is a good place to bring your patent case or your intellectual property case."
To accomplish this, Bromberg is trying to create new rules and timelines that would expedite the handling of patent cases, which are complex, costly, and consume a great deal of court resources. The new guidelines would push all judges to process patent cases at the same pace; currently, some cases move more quickly than others, depending on which judge is assigned to them.
He has set up a task force of several Boston intellectual property lawyers who are drafting proposed guidelines and working to promote better communication between the bench and the patent bar.
And he has spoken with US District Judge Richard J. Stearns to discuss his concept of a more efficient, user-friendly litigation process.
In an interview, Stearns called Bromberg's proposal a good idea and said he would present the task force's proposed guidelines to the rest of the bench once they are finalized.
Winning the support of the local judiciary is key to Bromberg's effort, since patent lawyers -- who can typically file a lawsuit anywhere in the country where a patent is allegedly being infringed -- gravitate to jurisdictions where judges are receptive to patent cases and familiar with their complexities.
Patent lawyers are also heavily influenced by how briskly patent cases are resolved, as well as by a jurisdiction's so-called win rate for plaintiffs.
Last year, 57 percent of all patent cases were filed in only 10 federal districts, with Massachusetts being the eighth most active jurisdiction, according to a May study by the Washington, D.C., law firm Covington & Burling.
The most popular was the Central District of California, which encompasses Los Angeles, followed by the Eastern District of Texas, where plaintiffs have won 88 percent of all jury trials and 75 percent of all bench trials since 1994, the study found.
In Massachusetts, where 80 patent cases were filed last year and 121 were pending at the end of fiscal year 2006, patent cases take 28 months, on average, to get to trial. That's significantly longer than in the Eastern District of Texas (17.7 months) and Southern District of Florida (16.3 months).
Bromberg and Stearns believe Massachusetts can easily absorb additional patent litigation, particularly if the process is standardized and streamlined.
"We're capable of doing the work," Stearns said. "I don't think the court is straining to deal with the caseload it presently has."
One key advantage of raising Boston's profile as a destination for patent litigation: local companies would be more likely to file their patent disputes in Massachusetts, which can hold down litigation costs.
"If you have a small biotech company in Cambridge or in New Bedford, for that matter, it's advantageous for you to be able to enforce your intellectual property in the local community," said Boston lawyer Paul F. Ware, a member of Bromberg's task force, "because if you have to go to Texas or California to bring your lawsuit to maximize the chances you'll get the best airing of the dispute you can get, that adds a tremendous amount of cost.
"And early-stage companies are in no position to invest huge sums in litigation."
In addition, conventional wisdom says local juries are more likely to be friendly to their neighbors, including corporate neighbors.
More patent litigation filed in Boston would also mean more business for Massachusetts law firms, since out-of-state lawyers usually need local counsel. Bromberg also envisions Boston-area hotels and restaurants benefiting from a rise in local patent-litigation filings, since lawyers and experts often camp out for weeks or months for a trial.
According to a 2004 survey by the American Intellectual Property Law Association, the average cost in Boston of litigating a patent case valued at between $1 million and $25 million was $2.6 million. That number jumped to $4.1 million when the case's value was more than $25 million.
Attracting patent litigation is "good for the bar, it's good for the intellectual property legal community, and it's good for the federal judiciary," Bromberg said. "We have the talent here. Let's let the secret out. Let's let people know. Let's promote more of these cases."
Sacha Pfeiffer can be reached at pfeiffer@globe.com. 