There’s a crisis in the U.S. patent system—at least that’s what we are told. Depending on who’s talking, the crisis stems from some or all of the following: the issuance of too many patents, inadequate funding of the Patent Office, litigation brought by so-called patent trolls, case law permitting easy patentability of software, extraordinarily high litigation expenses, runaway juries, legal standards that authorize excessive damages, and federal district judges who are in over their heads dealing with this complex subject matter. Allegedly, this crisis hurts innovation and risks our country’s competitive advantage abroad. We’re told that it’s time for a change.
The Patent Cases Pilot Program, adopted by Congress in 2011, is an effort to address one of the supposed problems—judges who do not want to preside over these cases. The legislation authorizes federal courts in certain districts to reassign patent cases from judges who opt not to keep them on their docket to other judges who are willing to tackle them. In other words, the program modifies the current random assignment of cases. In fact, it appears to be the only exception to random assignment provided for by congressional enactment.
When this legislation was adopted, the initial assumption of most patent lawyers with whom I spoke was that in the authorized districts, only certain judges—presumably those with interest and expertise—would hear and decide patent cases. Patent lawyers tended to think this was a good thing. That, however, is not how the pilot program works. To understand how it actually operates requires a brief sketch of the legislation and its goals, and an analysis of whether those goals are actually being met.
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