Patent Baristas

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:

* To what extent has the program succeeded in developing patent expertise among trial judges?
* Has patent expertise improved the time-line 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?

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

Today’s post comes from Guest Barista Ria Schalnat, a registered patent attorney in Frost Brown Todd’s Cincinnati office.