House Creates Specialized Patent Trial Judges

February 14, 2007

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).  Senator Orrin Hatch (R-UT) and Senator Dianne Feinstein (D-CA) have already introduced S. 3923 as a companion bill to H.R. 5418. 

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:

The legislation appears to have bi-partisan support and is expected to become law before the close of the current Congressional session.


For further information, please contact Ria Farrell Schalnat at rschalnat@fbtlaw.com or 513.651.6426.

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