The Great Patent Case Experiment - Fordham Intellectual Property, Media & Entertainment Law Journal
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The Great Patent Case Experiment

The Great Patent Case Experiment

A new ten-year pilot program that directs patent cases to a select group of judges within each participating federal district is finally underway in the Southern District of New York.  The bills establishing the program took a few years to make their way through Congress, and the Southern District was selected back in June to be among the fourteen guinea pig courts.  Now we know which SDNY judges will be “enhanc[ing] their expertise in patent cases” by participating: the Honorable(s) Castel, Cote, Griesa, Koeltl, McMahon, Rakoff, Scheindlin, Swain, and Sweet.

To be eligible for the program, a district court had to be among the nation’s top fifteen most popular venues for patent litigation, or have adopted the patent rules of its jurisdiction.  The law then required the Director of the Administrative Office of the United States Courts to select at least three districts with ten or more judges and three districts with fewer than ten.  The result is a diverse group of pilot courts.  Some, like the Eastern District of Texas or our Southern District, already swarm with patent attorneys. Others, like the Western District of Tennessee and the Western District of Pennsylvania, have heard far fewer patent cases over the last decade.  (For a thorough district-by-district breakdown of patent litigation from 2000-2010, check out Stanford Law School professor Mark A. Lemley’s illuminating article in the AIPLA Quarterly Journal.)

SDNY Chief Judge Loretta A. Preska said of the pilot program: “The Southern District has one of the largest patent caseloads in the nation; as a result, our judges are already very well-versed in patent law. However, this pilot will further refine the court’s expertise, and it will ultimately help us better serve patent litigants. We look forward to working with the Administrative Office to implement this innovative program.”

It remains to be seen just how the pilot program will affect dockets around the nation, but it is conceivable that it will result in a reshuffling of favored courts as plaintiffs seek new “rocket dockets” to efficiently dispose of their complaints. On the other hand, a major shake-up may be mitigated by the fact that the pilot program does not alter the way cases are initially assigned — case are still distributed randomly among all of a district’s judges.  The program’s innovation is that a non-designated judge may now choose to decline a patent case and have it reassigned to one of his designated colleagues.  As it was originally conceived, the program would also have offered additional hiring funds to participating districts, thereby alleviating the burden on staff and perhaps expediting cases.  However, the funding provisions were cut from the bill as it was ultimately approved.

It will be about five years before Congress receives an official report on the relative success of the pilot program.  But in the increasingly complex realm of patent litigation, the initiative is already welcome.

David Shamoon