Establishing a Pilot Program in Certain District Courts to Encourage Enhancement of Expertise in Patent Cases Among District Judges

ESTABLISHING A PILOT PROGRAM IN CERTAIN DISTRICT COURTS TO ENCOURAGE ENHANCEMENT OF EXPERTISE IN PATENT CASES AMONG DISTRICT JUDGES

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Mr. ISSA. Mr. Speaker, there are few things in this body that truly transcend party lines. The respect for the Constitution and our obligations under it clearly are the most important among them.

The Constitution makes it clear that inventors and authors and artisans are entitled to protection for a limited period of time under the Constitution. And yet, if it takes years to get through a patent case and only to have it reversed 30 to 40 percent of the time, much more often if it is a first-time case before a Federal judge, then justice is not only delayed but in some cases denied if you don't have the ability, after paying maybe $2 million, to pay another $2 million to go through the appeal process. Therefore, it is essential at the district court that the judges get it right the first time.

Under the Markman decision, a Federal judge must decide what the patent means. It is incredibly technical often to decide what 5,000 claims, sometimes looking thicker than the Bible and the Koran put together, really mean; and yet that is an obligation of the judge. Those obligations may be in the areas of mechanical engineering, electrical engineering. It could be chemical. It could be bio. It could be so technical as to require outside experts just to decipher some of the language. And yet we ask a Federal judge, most often the one who has just ascended to the bench, to take on these patent cases. This bill is designed to reduce the times in which the most complex cases get before the least prepared and sometimes even the least willing Federal judges.

It also is an example of something that has been used in other ways, but appropriate here: a theory that you must mend it, not end it. We have an obligation, and the Federal courts with us have an obligation, to deal with intellectual property properly because it is a right under the Constitution, and yet it is broken. My colleagues, Mr. Schiff as the cosponsor but, more broadly, Ranking Member Smith have been supportive. The now chairman of the subcommittee, Mr. Berman, helped all along the way. Mr. Conyers has been supportive, both in the last Congress and this Congress, in getting this bill out; and Senator Leahy and Senator Feinstein are working on the Senate side for a counterpart.

This type of legislation is narrowly crafted but deals with the exact problems we are facing. Let me just give you one example, Mr. Speaker. Most Americans understand in the last Congress the RIM or BlackBerry case, a case in which for years the litigation continued on and we were dealing with over half a billion dollars of final damages. Reversal after reversal, decision and indecision. That shouldn't happen when we are dealing with billions of dollars.

This legislation seeks to spend only $5 million a year to check out the feasibility of what would probably be only $50 or $60 million in total a year to make our Federal courts able to deal with what turns out to be tens or hundreds of billions of dollars of commerce.

Therefore, I hope that because we pass this early and, I trust, unanimously once again, that we will be able to deal with the Senate, bring this to the President's desk, and begin working with the courts to implement it.

Last but not least, an unusual ``thank you.' Justice Breyer was a major part of this discussion from the earliest stages, and as somebody who, while as a Senate staffer, was considered to be the father of the Fed circuit, his opinion that there needed to be a fix in the district court so as not to have to take from the district courts the very jurisdiction that we speak of here today, was crucial to the development of this bill.

I thank my colleagues on both sides of the aisle for this bipartisan support.

Mr. Speaker, I rise today in support of H.R. 34, a bill to establish a pilot program in certain United States district courts to encourage enhancement of expertise in patent cases among district judges. Congressman ADAM SCHIFF and I have worked together on this legislation since the last Congress, and I am grateful for the chance to move this legislation forward today.

The high cost of patent litigation is widely publicized, and it is not unusual for a patent suit to cost each party over $10,000,000. Appeals from district courts to the Court of Appeals for the Federal Circuit are frequent. This is caused, in part, by the general perception within the patent community that most district court judges are not sufficiently prepared to hear patent cases. I drafted this legislation in an attempt to decrease the cost of litigation by increasing the success of district court judges.

H.R. 34 establishes a pilot project within at least five district courts. Under the pilot, judges decide whether or not to opt into hearing patent cases. If a judge opts in, and a patent case is randomly assigned to that judge, that judge keeps the case. If a case is randomly assigned to a judge who has not opted into hearing patent cases, that judge has the choice of keeping that case or sending it to the group of judges who have opted in. To be a designated court, the court must have at least 10 authorized judges with at least 3 opting in.

The core intent of this pilot is to steer patent cases to judges that have the desire and aptitude to hear patent cases, while preserving random assignment as much as possible. Each of the test courts will be assigned a clerk with expertise in patent law or the scientific issues arising in patent cases, and funding is also allocated to better educate participating judges in patent law. The pilot will last no longer than 10 years, and periodic studies will occur to determine the pilot project's success.

I am happy to say that H.R. 34 is supported by software, hardware, tech and electronics companies, pharmaceutical companies, biotech companies, district court judges, the American Intellectual Property Law Association, and the Intellectual Property Owners Association among others.

This legislation is a good first step toward improving the legal environment for the patent community in the United States. H.R. 34 should not, however, be taken as a replacement for broader patent reform. We still need to address substantive issues within patent law, and I look forward to working with my colleagues on that broader effort as well.

I thank Judiciary Committee Chairman JOHN CONYERS and Ranking Member LAMAR SMITH, as well as Intellectual Property Subcommittee Chairman HOWARD BERMAN and Subcommittee Ranking Member HOWARD COBLE for all of their efforts in moving this legislation. I also thank Committee staff David Whitney and Shanna Winters for their counsel during the development of H.R. 34.

I encourage all of my colleagues to support H.R. 34.

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