Intellectual Property Law

As we have reported in the past, Congress has been taking up patent reform legislation in fits and starts. Although committees in both the House and Senate have considered a number of bills that would make changes in the patent laws that range from inconsequential to potentially radical, nothing yet has made it out of committee.

The IP Subcommittee of the House Judiciary Committee has taken another stab at legislation and is now considering a bill that would address two perceived problems with the present patent system: the high reversal rates of cases that are appealed to the Federal Circuit and forum shopping, by which patent owners hand pick "patent friendly" jurisdictions in which to file their cases. This latest patent reform act, introduced by California Representative Darrell Issa, himself a patent holder, would establish a pilot project in at least five district courts in which a specific number of district judges would volunteer to hear patent cases. The project envisions that all new cases filed in a participating district - including patent cases - would still be randomly assigned to a judge in that district. If the randomly-assigned judge had volunteered to hear patent cases, he or she would keep the case; if not, the non-participating judge could choose to keep the case, or it would be randomly reassigned to one of the patent case volunteers. Each judge who volunteers to hear patent cases would be assigned a clerk with expertise in patent law and/or technology. Presumably, if the pilot program is successful, this procedure would be expanded to all district courts.

A number of interested organizations have expressed their support for Representative Issa's bill, although they do not agree on all of the fine points. For instance, the American Intellectual Property Law Association would limit the program to district courts with at least nine judges, and the Biotechnology Industry Organization, while generally in favor of the legislation, has expressed concern that patent cases in a particular district could become too concentrated.

It is too early to tell whether this aspect of patent reform legislation will get to the floor of either the House or Senate - much less enacted. Should Congress tackle these issues? Are they going about it in the right way? Here is your chance to weigh in on this.

Today's Blogger: Bob Sloss