Authorizing Pilot Program for Patent Cases

Floor Speech

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Mr. ISSA. Mr. Speaker, it's been 8 years since this bill began being kicked around as a pilot. Some people would be less happy to announce it than I, but I would like to find them. Eight years ago when I began the dialogue with my colleagues, then the subcommittee ranking member, Mr. Berman, said, Tell me more about this problem. And I told him from life experience of the problem of these very talented judges, magistrates, and Federal judges who wanted to do a good job on patents, but it was almost always their first patent, and they lacked a support system to make it happen in both large and small districts. I told them how the southern district of San Diego had found ways to try to improve the system, gleaning some additional expertise from one or two judges who preferred these cases over some others and who actually sought them out. I also told some of my fellow colleagues about the horror stories of a magistrate ascending to the bench, finding that what he got from each of the other members were all their patent cases, and suddenly he had a backlog of these, had to find out what a Markman hearing was, had to start getting into technical issues, one on electronics, another on biotech, another one on telecommunications.

So over the years, we have all been educated well beyond that initial anecdotal example. Then Orrin Hatch, Chairman Hatch, was supportive. Now Chairman Leahy is supportive. All along the way, my classmate Adam Schiff has been supportive, along with both chairman, and ranking member at times, Howard Berman. Chairman Conyers has continued to be supportive and has helped me, along with Ranking Member Lamar Smith, vote this out early on in this Congress.

But I have a special thanks for Chairman Leahy who made sure this bill was pulled out of the comprehensive patent reform bill because its time truly had come to begin saying to judges throughout the country that, in fact, we were going to help them help themselves be better at this. Although it's called patent pilot, over the years it has been expanded to the number of jurisdictions that it could be used in to where it's become quite clear that this will be a challenge to be expanded countrywide in whatever format the study shows is best.

I find that this Congress, in its lame duck session, has done a few good things. No surprise that this is one that I think is particularly good, particularly good because, as Congressman Schiff just said, we are, in fact, dealing in the lame duck session with a problem that has been pervasive since before Congressman Schiff and I became Members of this body 10 full years ago.

So as I thank each of you for your passage of this bill, and with full confidence that this will become a broader consensus throughout the Federal system, I also join with my friend and colleague Adam Schiff in saying that the next Congress, in the early days, we must truly dedicate ourselves to comprehensive patent reform, to take each of the major issues that have been difficult and have, Congress after Congress, failed to become law, and find ways to resolve some or all of them for the good of the American people who find themselves spending 2, 3 or 8 or $10 million on what can often be a frivolous suit.

Again, Mr. Poe, I thank you for yielding me the time. I ask all my colleagues to vote for this small but important change in patent law.

Mr. Speaker, I rise today in support of H.R. 628, 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. 628 establishes a pilot project within at least six 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, or certify that they have adopted local rules for patent and plant variety protection cases.

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. 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. 628 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. 628 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 Senators Hatch and Leahy. I also thank my staff and the committee staff who worked so hard to make this possible.

I encourage all of my colleagues to support H.R. 628.

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