On June 7, 2011, the federal Judiciary announced the selection of the following 14 federal district courts to participate in a 10-year pilot project designed to improve the level of expertise among district court judges who oversee resolution of patent disputes in federal court:
- Eastern District of New York
- Southern District of New York
- Western District of Pennsylvania
- District of New Jersey
- District of Maryland
- Northern District of Illinois
- Southern District of Florida
- District of Nevada
- Eastern District of Texas
- Northern District of Texas
- Western District of Texas
- Central District of California
- Northern District of California
- Southern District of California
The pilot project was authorized by Pub. L. No. 111-349. On
January 22, 2009, the bill was introduced in the House by Rep.
Darrell E. Issa and cosponsored by Rep. Howard Coble, Rep. Henry C.
"Hank" Johnson, Jr., and Rep. Adam B. Schiff, and in the
Senate by Sen. Arlen Specter. President Obama signed the bill into
law on January 4, 2011.
Rep. Schiff indicated that he and Rep. Issa drafted the legislation
"in an attempt to decrease the cost of litigation by
increasing the success of district court judges":
I partnered with Mr. Issa on the bill (H.R. 628) because we share a
deep interest in improving the efficiency of the patent process, in
reducing litigation costs and inefficiencies in patent review, and
also in improving the quality of patents. The current law grew from
a hearing in the 109th Congress on improving federal court
adjudication of patent cases in response to high rates of
reversal—and where serious concerns were expressed about
proposals that would create new specialized courts.
http://www.uscourts.gov/News/TheThirdBranch/11-02-01/Pilot_Program_to_Enhance_Expertise_in_Patent_Cases.aspx
(last visited June 9, 2011).
Under the statute, the Director of the Administrative Office of the
United States Courts ("Director AOUSC") designates those
federal district courts that qualify to participate in the program.
In order to qualify, the court must either (a) be among the 15
district courts in which the largest number of patent and plant
variety protection cases were filed in 2010, or (b) be district
courts that adopted, or certified to the Director AOUSC the
intention to adopt, local rules for patent and plant variety
protection cases. From among the eligible courts that qualified for
the program, the Director AOUSC must select at least three district
courts having at least 10 authorized district judgeships in which
at least three judges have made a request to hear patent cases, and
at least three district courts having fewer than 10 authorized
district judgeships in which at least two judges have made a
request to hear patent cases.
Earlier this year, federal judges were given the opportunity to
request to hear patent cases. When a patent case is filed in one of
the district courts designated by the Director AOUSC, it will be
initially randomly assigned from the pool of all district judges,
regardless of whether they have been designated to hear such cases.
If a judge is randomly assigned a patent case and is not among the
designated judges, he or she may decline to accept the case. In
that circumstance, the case will be randomly assigned to one of the
district judges who has requested to hear patent cases in that
district. In this way, the system is designed to preserve the
random selection of judges to oversee patent cases but also to
permit reassignment of the case if the initially selected judge
declines it.
Most of the selected courts will begin participating in the program
in July of this year.
The statute also provides for accountability and monitoring of the
success of the program. The Director of the Federal Judicial Center
("Director FJC") and the Director AOUSC must submit
periodic reports to Congress that include (a) an analysis of the
success of the program in developing expertise, (b) an analysis of
the extent to which the program has improved efficiency, (c) a
comparison of reversal rates and the time patent cases are pending
between the designated and nondesignated judges, (d) a discussion
of any evidence that litigants are engaging in forum shopping as a
result of the program, and (e) an analysis of whether the pilot
program should be extended to other courts and/or should be made
permanent and apply to all courts.
The Director FJC is creating a special webpage to assist the pilot
courts with sample local patent rules and forms, patent law
publications, and case management materials for patent cases. The
Director FJC also plans to provide specialized patent law and case
management training for the pilot courts. It is not known at this
time whether this webpage will be accessible by the public.
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