June 2007: Creating Patent Expertise in the District Courts

Washington Watch | June 2007
By Bruce Moyer

Rep. Howard Berman (D-Calif.) has pledged to go the distance to overhaul the nation's patent laws. Patent reform has been one of Berman's top priorities for several years, and now that he chairs the House judiciary panel that oversees the nation's patent system, legislative success may lie within his grasp.

"High patent quality is essential to continued innovation," Berman, the 13-term representative from Southern California, says. He contends that increasing and expensive patent litigation, spurred by low-quality patents, is making it harder for American companies to compete globally. That's why Berman, along with Rep. Lamar Smith (R-Texas), the leading Republican on the House Judiciary Committee, are pressing for legislation that, according to them, would create a more streamlined way to award and enforce patents. Berman's judiciary subcommittee took the first legislative steps in May when it approved a bipartisan measure, the Patent Reform Act of 2007 (H.R. 1908); a similar measure in the Senate (S. 1145), introduced by Sen. Patrick J. Leahy (D-Vt.) and Sen. Orrin Hatch (R-Utah), awaits action.

The idea of patent reform has been kicking around on Capitol Hill for close to a decade, and success in the current Congress could ultimately run aground once more, despite Berman's ambitions. Complex issues and diverse interests are involved, including a controversial proposal that would introduce a "first-to-file" patent system, reversing the "first-to-invent" approach that has distinguished America's patent system from that of the rest of the world.

With those potential hurdles in mind, Berman has mapped out a strategy that seeks to achieve smaller legislative wins. One of those efforts involves legislation that would create greater patent expertise in the district courts through the crafting of better decisions that resist appeal and reversal and avoid expensive, time-consuming litigation. To that end, in February the House passed a measure (H.R. 34) that would establish a 10-year pilot program in those district courts where the greatest amount of patent litigation tends to occur. The House passed an identical measure last September, but time in the 109th Congress ran out before the Senate could take action.

Under the legislation passed in the House, the Administrative Office of the U.S. Courts would establish a pilot program in the district courts in which the most patent cases are filed. The bill would require the Administrative Office to designate at least five district courts in at least three circuits as courts where the pilot program would be implemented. The Administrative Office would select participating courts from the 15 district courts that had the largest number of patent cases filed in the previous year. To qualify, a court must have at least 10 judges, and at least three judges must ask to take part in that program. District judges could request to hear cases on patent or plant-variety protection. At least $5 million would be authorized annually for education and professional development of district judges designated to hear patent cases and to pay law clerks who have patent expertise.

The House's legislation was crafted by Rep. Darrell Issa (R-Calif.) and Rep. Adam B. Schiff (D-Calif.), two of the foremost House lawmakers on patent issues and patent reform. Their bill is targeted at the high reversal rate of district court patent claim decisions. The Federal Circuit Court of Appeals, which has exclusive jurisdiction over patent appeals, reverses more than 30 percent of the patent appeals it hears. Critics contend that the high reversal rate is attributable to judicial inexperience and misunderstanding of patent law. A district court judge typically has a patent case proceed through trial only once every seven years. In addition, even though patent cases account for only 1 percent of the federal district courts' cumulative docket, these cases represent a far greater share—an estimated 10 percent—of the complex cases that district courts hear. Patent cases also demand a disproportionate share of attention and judicial resources. District court judges are said to spend an inordinate amount of time on these cases because of the combination of complex science and technology, the unique patent procedures and laws, and the number of issues raised by patent litigation.

Congressional action on this issue now shifts to the Senate, where Sen. Patrick Leahy and Sen. Dianne Feinstein (D-Calif.) are drafting a counterpart patent expertise bill.

Bruce Moyer is government relations counsel for the FBA.
© 2007 Bruce Moyer. All rights reserved.

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