Cases involving the infringement, invalidity, or unenforceability of U.S. patents are notorious for involving complex legal and technical issues. As a result, patent cases are generally expensive, lengthy, and consume substantial judicial resources. Although they account for 10 percent of all complex litigation filed in the federal district courts, patent cases account for only one percent of all district court cases. Individual federal judges, therefore, may be assigned only three to four patent cases over their tenure on the bench. Given the complexity of patent cases and federal judges’ lack of exposure to such cases, it is not surprising that the reversal rate of patent cases on appeal is almost 40 percent.

To improve the district courts’ patent expertise, efficiency, and reversal rate on appeal, the U.S. House of Representatives passed a bill, H.R. 5418, on September 28, 2006 authorizing a patent pilot program for the district courts. California Representatives Darrell Issa (R) and Adam Schiff (D) introduced the bill in May 2006, which received unanimous support in the Judiciary Subcommittee. Senators Orrin Hatch (R) and Dian Feinstein (D) introduced a similar bill, S. 3923, in the Senate on September 21, 2006, which subsequently was referred to the Senate Judiciary Committee.

Under the pilot program, judges interested in hearing patent cases can request that the chief judge of the district court designate them to hear such cases. All newly filed cases, including patent cases, would be randomly assigned to a judge in the district court. However, a judge who has not requested to hear patent cases could decline to accept a patent case. Once a judge declines a case, the case will be reassigned randomly to a judge who has been designated to hear patent cases.

According to House Report 5418, the pilot program would be instituted in no fewer than five district courts in at least three different judicial circuits. The five district courts would be chosen from the district courts in which the largest number of patent cases are filed in the previous year. However, only district courts having at least 10 judges, at least three of which have requested to hear patent cases, would be eligible to participate in the pilot program. Not less than $5,000,000 would be allocated per year to support: (1) educational and professional development of the designated judges; and (2) compensation for law clerks having technical expertise.

H.R. 5418 further requires that reports be provided to Congress after the first five years and at the end of the 10-year pilot program. Such reports would provide the following:

  • An analysis of the extent to which the program has succeeded in developing judges with expertise in patent cases

  • An analysis of the extent to which the program has increased the efficiency of the district courts involved

  • A comparison between judges designated to hear patent cases and those who are not with respect to reversal rates on appeal and elapsed period of time from the date of filing to entry of summary judgment or trial

  • Evidence whether litigants forum shop in an attempt to ensure a given outcome

  • An analysis of whether the pilot program should be expanded to other district courts or be made permanent in all such courts

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