House Creates Specialized Patent Trial Judges
On February 12, the House of Representatives approved a pilot program (HR 5418) to develop an opt-in for specialized patent trial judges. The legislation was introduced by Representatives Issa (R-CA) and Schiff (D-CA).
The goal is to develop some patent expertise at the trial level and, hopefully, result in a reduction in the number of cases that get reversed by the Federal Circuit (currently about 50%). Depending on how the program goes, it could ultimately reduce some of the uncertainty and cost associated with patent litigation. It might also mean shorter discovery times if these patent-specific judges make a priority of setting dates for Markman hearings (patent claim constructions) sooner than later.
The pilot will last for 10 years with periodic check-ins. At least 5 courts will be initially selected for the program, preferably from those courts experiencing the highest number of patent cases. Some of the checkpoints that will be analyzed include:
- To what extent has the program succeeded in developing patent expertise among trial judges?
- Has patent expertise improved the timeline of patent cases?
- Do opt-in judges have a lower rate of reversal than other judges who keep their patent cases?
- Is there any evidence of forum shopping as a result of the pilot?
For further information, please contact Ria Farrell Schalnat at firstname.lastname@example.org or 513.651.6426.