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Improving federal court adjudication of patent cases : hearing before the Subcommittee on Courts, the Internet, and Intellectual Property of the Committee on the Judiciary, House of Representatives, One Hundred Ninth Congress, first session, October 6, 2005.
The creation of the U.S. Court of Appeals for the Federal Circuit (CAFC) is generally regarded as an improvement in the system of patent adjudication in the United States. There is, however, considerable support for the creation of a specialized patent trial court based on the argument that we need to create specialized, judicial human capital at the trial level. Proponents favoring this change base their reasoning on the two-part argument that, because of the complexity of patent cases and the natural limitation on most federal judges to be hearing a significant volume of patent cases, experienced federal judges on a specialized patent trial court will (1) resolve cases more efficiently (i.e., the duration of patent cases will be shorter), and (2) render more accurate decisions (i.e., lower reversal rate on appeal). We treat each part of this argument as hypotheses to be tested by statistically analyzing the relationship between both general and patent-specific judicial experience of federal judges hearing patent cases and the efficiency and accuracy with which their cases were handled. In other words, we empirically answer the question whether federal judges exposed to more patent cases are better in terms of efficiently and accurately deciding patent cases compared to their judicial counterparts who have lesser exposure to patent cases. We measure general experience in terms of years on the bench (and other variables), cumulative patent experience in terms of the total number of patent cases a judge had presided over since the Federal Circuit Markman ruling, and recent patent experience by the number of patent cases a judge had presided over in the three year previous to the case at hand. We then test the impact of these experience measures on the efficiency with which a case is terminated, measured in terms of duration of the case, and the accuracy of the judge's decisions, measured by the reversal rate on appeal. With respect to efficiency, we find that both general and specialized patent experience shorten case duration, but only by a moderate amont. However, there is some weak evidence that patent cases handled by judges with more time on the bench may be more likely to result in settlements. Thus, it is possible that the impact of general judicial experience on case duration could be due to the ability of experienced judges to facilitate settlements rather than adjudicating to a ruling on the merits (summary judgment or through to trial). There is, however, no greater propensity to settle in the case of judges with more patent-specific judicial experience. With respect to accuracy, we find that patent-specific judicial experience may increase the probability that a district court judge's rulings are fully affirmed by the Federal Circuit (CAFC) and reduce the probability that they will be at least partially reversed by the CAFC. However, general judicial experience has no statistically significant impact on the reversal rate on appeal in patent cases. When the impact of specialized patent experience is tested for individual legal issues, we find that increased patent-specific experience may lower the reversal rate on appeal for rulings on preliminary injunctions, judgments as a matter of law, and infringement that involves issues other than claim construction. With respect to the issue of claim construction, our findings are consistent with other work demonstrating that experience with patent cases per se has no impact on the reversal rate of district court claim construction rulings. Our results establish a real but moderate case for the development of patent-specific, judicial human capital at the district court level through the establishment of a specialized patent trial court.
The Supreme Court on Patent Law is a digest of U.S. Supreme Court decisions in the field of patent law. The author catalogs the Supreme Courtand’s involvement in shaping patent law, from its first cases to the most recent cases, shedding important light on the evolving course of this rapidly-changing practice area. Specifically, this book examines the Courtand’s treatment of patentable subject matter, including a case-by-case analysis in reverse chronological order and by specific topic that describes each case in a short, multi-paragraph format accompanied by key facts, key holdings and select quotations. Additionally, the author considers the Courtand’s treatment of relevant subjects in patent law: claim construction, statutory requirements, prior art defenses, equitable defenses, damages, willful infringement, declaratory judgment jurisdiction and injunctions. The principal areas of the work are the Supreme Courtand’s treatment of: Patent law Patentable subject matter Claim construction Statutory requirements Prior art defenses Equitable defenses Damages Willful infringement Declaratory judgment jurisdiction Injunctions and other remedial matters. This new title provides powerful quotations and an analytical roadmap that practitioners can use in their briefs, in arguments, and in formulating litigation strategy at each stage of the federal court system. RECENT REVIEWS: andquot;In this well organized, readily accessible and highly readable treatise, Michael Kiklis analyzes the serial interventions by the Supreme Court that keep altering the purely statutory patent law as interpreted by the Federal Circuit and understood by patent practitioners. Because these alterations are continuing and even accelerating, practitioners need to anticipate where the Court is headed next if they are to serve their clients well. By stressing trends and explaining dicta for what it may portend, Kiklis provides an invaluable chart for navigating shifting seas.andquot; and– Paul Michel, former Chief Judge, United States Court of Appeals for the Federal Circuit and“In this one volume, Michael Kiklis has filled in a critical gap in our understanding of modern American patent law. Every person interested in the field must study the current Supreme Courtand’s take on patents, and there is no better source than this treatise.andquot; and– Tom Goldstein, Publisher, Scotusblog.com and“The Supreme Court on Patent Law is a tremendous resource for all patent practitioners, but is a must have for all executive level in-house patent counsel. In his treatise, Mike provides a detailed road map that will enable in-house counsel to make better strategic decisions quickly. In a time when more is asked of fewer in less time, this will be the single best go to resource for all things past, current and future in the world of patent law. While we will never know exactly where the Supreme Court will land on a given patent law issue, Mikeand’s road map provides GPS level clarity on the likely destination.and” and– Dave Berdan, Vice President, Intellectual Property, International Game Technology and“The Supreme Court on Patent Law is a great resource for the expert and the novice alike. It offers a straightforward, at-a-glance gateway into every key aspect of patent law, via the most authoritative source available: summaries of and key quotes from all relevant Supreme Court decisions.and” and– Lisa A. Dolak, Professor of Law, Syracuse University College of Law and“The Supreme Court on Patent Law is a must read for every patent practitioner. The Supreme Court is the most important voice on patents and this tre
Produced with the support of the University of California at Berkeley School of Law and the Berkeley Judicial Institute, this Guide highlights the progress achieved in patent case management in ten patent-heavy jurisdictions. The Guide offers an overview of the patent system in each jurisdiction, including the role of patent offices in evaluating and deciding on patent validity, and the judicial structures responsible for resolving patent disputes. Thereafter chapters are structured on the different stages of patent litigation in civil infringement cases. Readers can create their own custom guide by selecting any combination of jurisdictions and topics covered in the Guide. Please see the Custom guide link: https://www.wipo.int/about-patent-judicial-guide/en
In this article, we attempt to answer some fundamental questions regarding the role played by the courts in the patent system by examining a set of patent cases in great detail. To this end, we have constructed a new database based on court docket reports for all patent cases filed in 1995 and 1997 and tracked the evolution of these cases (about 3700 cases) through to settlement or adjudication on the merits. The focus of this effort is on keeping track of a number of variables to understand the precise disposition of each case. We have also tracked different characteristics in order to estimate patent litigation costs in each case. For instance, we note the amount of time taken by each case through to final disposition. In addition, we have devised a new proxy for measuring costs - the number of documents filed by all the parties in each case - which we believe is more closely correlated with actual litigation costs than the traditional measures of time expended and the stage of termination in each case. Our results show that many more patent cases are adjudicated on the merits (either at the pre-trial stage through a grant of summary judgment or at trial) than is commonly thought. This work is one of the few scholarly efforts in empirical litigation scholarship that can actually estimate this amount because most other papers rely exclusively on the imprecise categorization of the Administrative Office of U.S. Courts to determine case outcomes. Our results demonstrate that in addition to the small number of patent cases going to trial (about 5%), another significant percentage of cases (about 8-9%) are resolved on the merits through summary judgment. Consequently, summary judgments are important in patent cases for determining patent validity and infringement, and the summary judgments related to patent validity occur earlier in the litigation compared to summary judgments related to patent infringement. This result is somewhat encouraging given the important role played by the courts in revoking patent rights improvidently granted at the outset by the PTO. Nevertheless, despite the fact that such rulings occur early in the proceedings compared to patent trials, we should still be concerned about the huge transaction costs associated with patent litigation because summary judgments in general, and summary judgment based on invalidity in particular, are expensive compared to summary judgments granted on other grounds. In addition, there is a significant difference in duration and number of documents filed in cases resolved through summary judgment for the 1997 filed cases compared to the 1995 filed cases. This is consistent with the changes brought about by the Markman decision that invigorated claim construction as a threshold legal issue in patent litigation. The increased importance placed on first construing the claims before addressing infringement or invalidity after Markman necessitates that significant resources be allotted to the step of claim construction before (or concurrent with) filing motions for summary judgment. Overall, our results show that transaction costs associated with patent litigation loom large, and rulings on the merits by the courts concerning patent validity, patent infringement, and remedies for infringement (i.e., injunctive relief or damages) are rare, expensive, and not pursued to completion by most litigants. Instead, most patent cases settle fairly quickly (about 12-15 months) after the filing of the complaint, thereby reducing the actual cost of patent litigation considerably. This work has significant implications for all civil litigation in general, and for recent efforts to reform the patent system by either improving patent quality through new administrative procedures at the PTO or for substantive patent law reform. Our results strongly suggest that patent litigation is largely a settlement mechanism, and hence, any proposed change in the patent laws should be analyzed in terms of the incentives generated for prompt settlement of patent disputes. In addition, entities and interest groups seeking cheaper and/or a greater number of patent rulings concerning validity and infringement will be wise to look elsewhere, perhaps at other patent institutions such as the PTO or at other alternative dispute resolution (ADR) mechanisms that complement the courts.
"The course is based upon a hypothetical patent infringement controversy that has reached the trial stage" -- Introduction.