Specializing District Courts for Patent Litigation

By Connors, Elizabeth | Case Western Reserve Law Review, Spring 2019 | Go to article overview

Specializing District Courts for Patent Litigation


Connors, Elizabeth, Case Western Reserve Law Review


INTRODUCTION   I. SPECIALIZATION AT THE TRIAL COURT LEVEL     A. What We Knew     B. What We Know     C. What This Does Not Answer     D. What the AIA Could Add II. SPECIALIZATION'S ADVANTAGES AND DISADVANTAGES     A. General Arguments for Specialization     B. Arguments Against Specialization Skepticism     C. The Specialization Already in Place     D. What Commentators Have Suggested     E. Effects to Consider III. RECOMMENDATIONS     A. What Should Be Considered     B. What Patent Tribunals Should Look Like Going Forward CONCLUSION 

INTRODUCTION

Specializing the judiciary is a contentious topic in an American legal system that assumes generalist judges can handle any case that comes before them. However, it has been acknowledged that patent law requires some form of specialization, whether it is among lawyers who prosecute patents before the Patent and Trademark Office (PTO) or the judges on the appellate court that reviews patent cases. Congress also recently passed a law that went even further to build patent law expertise in the judiciary, creating the Patent Pilot Program to allow participating district courts to designate specific judges to hear patent cases in that district. (1)

But, while this is an admirable experiment to promote specialization for patent litigation at the trial court level, the Patent Pilot Program may have been misguided in the way it addressed the problems identified in patent law jurisprudence. As the program is now seven years into its ten-year duration, (2) and the midpoint report on the program has been issued by the Federal Judicial Center, (3) this Note aims to look at whether the program is achieving its goals of creating expert judges for patent cases (4) or whether at the end of its duration Congress should consider other means of patent reform.

Part I of this Note will review studies that occurred prior to the passage of the Patent Pilot Program to evaluate what was already known about both patent litigation in district courts and district courts' relationship with the Federal Circuit. Part I will then go on to review the information from the five-year report and discuss qualities unique to patent law that lack data. Finally, Part I will address the passage and implementation of the American Invents Act (AIA) (5) that occurred after the Patent Pilot Program began. Part II will look at the arguments for and against specialization before reviewing several suggestions of how to specialize trial courts for patent litigation. Part III of this Note will address what should be prioritized in patent litigation reform and then lay out recommendations concerning the Patent Pilot Program and how to reform district court litigation of patent cases going forward.

I. SPECIALIZATION AT THE TRIAL COURT LEVEL

In 2011, Congress enacted the Patent Pilot Program, which adjusts how patent cases are transferred between judges in federal district courts. (6) Thirteen districts volunteered; in these districts, at least one designated judge can have any patent case originally assigned to another judge in that district voluntarily reassigned to a designated judge. (7) This pilot program will last for ten years, with regular reports published comparing the empirical differences between patent cases handled by designated judges and nondesignated judges. (8) The reports evaluate the effect of judicial designation by looking at the extent to which the program has succeeded in developing expertise in patent cases among the designated district court judges; the extent to which the program improved the efficiency of the courts involved due to that expertise; the difference between designated judges and nondesignated judges in terms of the rate of reversal by the Court of Appeals for the Federal Circuit on the issues of claim construction and substantive law; the difference between designated judges and nondesignated judges in terms of the period of time elapsed from the date a case is filed to the date a trial begins or summary judgment is entered; evidence of forum shopping; and an assessment of whether Congress should either extend or make the program permanent. …

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