Academic journal article Harvard Journal of Law & Technology

Experts, Generalists, Laypeople, and the Federal Circuit

Academic journal article Harvard Journal of Law & Technology

Experts, Generalists, Laypeople, and the Federal Circuit

Article excerpt

TABLE OF CONTENTS    I. INTRODUCTION                                                575  II. THE PATENT LANDSCAPE TODAY                                  579      A. Administrative Overhaul: from the AIA to Oil States      579      B. District Court Changes: Concentration, Pilots, and the   585         Pursuit of Juries III. METHODOLOGY                                                 591      A. Data Source                                              591      B. Coding Procedure                                         592  IV. ANALYSIS                                                    596      A. PTAB Data                                                597      B. District Court Data                                      605      C. Drawing Comparisons                                      610      D. Critiques and Concerns                                   617   V. MAKING SENSE OF THE DATA: ANTI-EXCEPTIONALISM AND           622      CONTEXT-SPECIFIC DEFERENCE  VI. CONCLUSION                                                  631 

I. INTRODUCTION

I CANNOT STOP WITHOUT CALLING ATTENTION TO THE EXTRAORDINARY CONDITION  OF THE LAW WHICH MAKES IT POSSIBLE FOR A MAN WITHOUT ANY KNOWLEDGE OF  EVEN THE RUDIMENTS OF CHEMISTRY TO PASS UPON SUCH QUESTIONS AS  THESE... FOR ONLY A TRAINED CHEMIST IS REALLY CAPABLE OF PASSING UPON  SUCH FACTS... HOW LONG SHALL WE CONTINUE TO BLUNDER ALONG WITHOUT THE  AID OF UNPARTISAN AND AUTHORITATIVE SCIENTIFIC ASSISTANCE IN THE  ADMINISTRATION OF JUSTICE, NO ONE KNOWS.  --JUDGE LEARNED HAND (1) 

Who should decide a patent case? There is no shortage of anecdotal--and contradictory--answers, depending on who is asked. Jurors are either woefully unqualified (2) or paragons of virtue (3). Judges need either more technical specialization (4)--or less. (5) And administrative tribunals are either "patent death squads" (6) or the only bulwark left against innovation-choking trolls (7).

The patent landscape has changed radically in the past decade, particularly in terms of decision-makers. The Leahy-Smith America Invents Act ("AIA") (8) expanded the U.S. Patent and Trademark Office's authority as an administrative tribunal and greatly increased third-party participation in the patent grant (and post-grant) process. (9) The Patent Cases Pilot Program now funnels many patent cases to judges with enhanced patent training and experience, on top of a litigant-driven concentration among a handful of districts and a growing demand for juries. (10) Meanwhile, more than half of the seats on the Court of Appeals for the Federal Circuit--the sole appellate tribunal of right for these matters--have changed hands. (11)

Recent empirical studies of patent litigation have offered considerable insight into, for example, the significance of different areas of patented technology (12) or particular district courts (13) on case outcomes. But few have shed light on the differences between classes of adjudicators: administrative patent judges on the Patent Trial and Appeal Board ("PTAB"), district court judges of various stripes, and juries. (14) And no studies offer a comprehensive picture of the natural experiment currently unfolding. That is, comparable patent validity issues are decided separately by judges, juries, and administrators, but all of their decision-making is reviewed in turn by a singular, controlling entity: the Federal Circuit. Accordingly, examining and comparing the results of appeals to the Federal Circuit from each of these adjudicators offers a particularly clear window into the relationships between these entities--and into the varying effects of expertise and specialization in the patent world overall.

This Article capitalizes on the current adjudicatory structure of patent law, analyzing more than two thousand Federal Circuit cases and opinions--each hand-coded for validity findings and their disposition on appeal issue-by-issue. Though an incredibly time-intensive approach, (15) the result is a uniquely complete and clear dataset. …

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