Judicial Experience and the Efficiency and Accuracy of Patent Adjudication: An Empirical Analysis of the Case for a Specialized Patent Trial Court

By Kesan, Jay P.; Ball, Gwendolyn G. | Harvard Journal of Law & Technology, Spring 2011 | Go to article overview

Judicial Experience and the Efficiency and Accuracy of Patent Adjudication: An Empirical Analysis of the Case for a Specialized Patent Trial Court


Kesan, Jay P., Ball, Gwendolyn G., Harvard Journal of Law & Technology


I. INTRODUCTION

Proponents of increased specialization in the judicial structure of patent adjudication were temporarily quieted when Congress created the U.S. Court of Appeals for the Federal Circuit ("CAFC"). However, as the consequences of establishing this specialized appellate court transitioned from theories to observations, proponents for change once again found their voices, with some urging increased specialization at the trial level in addition to the appellate level. As Lawrence Sung noted:

   Patent litigation stands among the most complex,
   with disputes about cutting-edge technology muddied
   with esoteric and arcane language, laws, and
   customs. Even with the assistance of legal and technical
   experts as well as special masters, generalist
   judges and juries are often at sea almost from the beginning
   of a patent case. When compared to other
   adversarial actions, patent cases benefit significantly
   from having a judge hear the case who is familiar
   with technical issues. (1)

Academics began this new discussion as early as the mid-1990s. In 1995, John Pegram proposed creating a separate federal trial court specializing in patent cases, without a criminal docket, and using the U.S. Court of International Trade to fill this role. (2) More recently, Chief Judge James F. Holderman of the U.S. District Court for the Northern District of Illinois has called for similar patent specialization at the trial level. (3) As more cases passed through the CAFC, law reviews published articles on the need for change. In 2002, Arti Rai raised concerns about the CAFC's de novo appellate review of some largely factual issues, calling for the creation of a specialized patent trial court that the CAFC would defer to on questions of fact. (4) Rai argues that the risks of tunnel vision and bias that accompany specialized courts are of greater importance in appellate courts than in trial courts, because that is where the law is developed. She urges that patent trial courts can best leverage subject matter expertise, while appellate courts should be concerned with broader vision. (5)

This discussion is not just of scholarly or theoretical interest; several legislative reforms have been proposed to create opportunities for specialization at the district court level in patent cases. (6) For instance, in 2007, the Senate Judiciary Committee considered H.R. 34, which sought "to establish a pilot program in certain United States district courts to encourage enhancement of expertise in patent cases among district judges." (7) This bill would permit district court judges to "request to hear cases under which one or more issues arising under any Act of Congress relating to patents or plant variety protection must be decided." (8) The assumption, of course, is that allowing judges to specialize in patent litigation will lead to better resolution of patent disputes. The House version of the same proposal from the 111th Congress, H.R. 628, was passed by the House and Senate and signed into law by President Obama on Jan. 4, 2011. (9) Under this law, a new pilot program will be implemented in certain U.S. District Courts to enhance the expertise of federal judges hearing patent disputes. (10) A minimum of six U.S. District Courts in at least three different judicial circuits will be designated as the initial trial courts for piloting this program. (11) These courts will be selected from among the fifteen judicial districts with the most patent filings in 2010 or from judicial districts that have adopted local rules for patent cases. (12) Participation in this pilot program is optional; judges from the selected districts have the choice to opt in. (13) The pilot program is scheduled to run for a period of ten years. (14) The objective of this pilot program is to steer patent cases to district court judges who have the interest and aptitude to hear more patent cases, thereby increasing the level of judicial expertise in patent litigation.

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Judicial Experience and the Efficiency and Accuracy of Patent Adjudication: An Empirical Analysis of the Case for a Specialized Patent Trial Court
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