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IP: Welcome to the new patent courts

A patent pilot program for the federal district courts

Under our system of law, the federal district courts have exclusive jurisdiction over patent cases. Those courts have the responsibility to decide issues of patent claim construction, patent validity and patent infringement involving complex technologies, sometimes arcane patent prosecution procedures and often subtle issues of patent law. Unfortunately, many of those issues may extend beyond the first-hand experience and personal expertise of a typical federal district judge, because patent cases are unlike any others on a federal court docket.

Some think it is the lack of judicial experience and expertise with patent issues at the trial court level that has led to an unusually high reversal rate on appeals to the Federal Circuit. However, the U.S. Supreme Court’s recent focus on patent law cases and increasing criticism of Federal Circuit decisions may temper that view.

To improve the success-rate of district court judges in patent cases, Congress created the Patent Pilot Program for a limited number of district courts. Starting in the fall of 2011 and extending for a full decade, the program is designed to provide a select group of judges with specialized training and education to help them address the particularities of patent litigation.

Rep. Hank Johnson Jr. (D-Ga.), a co-sponsor of the enacting legislation, explained that the program will “create a cadre of judges who gain advanced knowledge of patent and plant variety protection through more intensified experience in handling the cases, along with special education and career development opportunities.” It is ultimately expected that the program will decrease litigation costs by increasing judicial efficiency in handling patent cases and reducing the need for appeals.

Interestingly, patent cases filed in one of the selected district courts will not automatically be assigned to a judge participating in the Patent Pilot Program. The new patent case will be initially assigned, as usual, on a random basis among the district’s judges. If the case is assigned to one of the judges who is not participating in the program, that judge may decline to take the case. The new patent case will be then randomly assigned to one of the participating judges. This procedure attempts to preserve the principle of random judicial assignments to discourage forum shopping among the pilot districts.

Each participating district court is obligated to provide periodic status reports to Congress detailing whether the court has developed expertise, increased its efficiency in resolving patent cases and seen more or less patent cases since it began participating in the program.

The participating district courts are the Northern, Central and Southern Districts of California, Southern District of Florida, Northern District of Illinois, District of Maryland, District of Nevada, District of New Jersey, Southern and Eastern Districts of New York, Western District of Pennsylvania, Western District of Tennessee, and the Eastern and Northern Districts of Texas.


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Eric Lobenfeld

Eric Lobenfeld is the co-head of the U.S. Intellectual Property Practice of Hogan Lovells. He has more than 35 years of experience litigating cases involving...

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