By: Annette I. Kahler

On January 4, 2011, President Obama signed into law a new pilot program to be implemented in certain U.S. District Courts to enhance the expertise of federal judges hearing patent cases. Within the next six months, a minimum of six U.S. District Courts, in at least three different judicial circuits, will be designated as the initial sites for implementation of the program.

The courts will be selected from among the 15 district courts where the most patent cases were filed in the past year or those courts that have adopted local rules for patent cases. Participation in the program will be optional, with judges from the selected districts having the choice to opt in.

According to Rep. Darrell Issa and Rep. Adam Schiff, both of California and co-sponsors of the House bill (H.R. 628), the core intent of the pilot program is to steer patent cases to judges that have the desire and aptitude to hear patent cases and raise the level of expertise in patent litigation. The bill, which was originally introduced by Issa and Schiff in 2006, took more than four years to secure final approval from Congress and reach the President’s desk to become law.

The pilot will run for a period of 10 years, during which reports will be submitted to Congress analyzing its success and making recommendations on whether the program should be continued permanently and apply to all District Courts. Among the information collected in the pilot will be metrics on reversal rates upon appeal among judges in the pilot group versus judges not participating in the pilot group, and how long it takes for cases to reach trial or summary judgment.

Evidence will also be analyzed to indicate whether litigants choose certain judicial districts in order to increase their likelihood of securing a given outcome, a practice known as “forum shopping.” Opponents of the District Court patent training program have argued that it may have the unintended and undesirable outcome of increasing forum shopping.

The program will be limited to District Courts, and will not extend to the Court of Appeals for the Federal Circuit (CAFC), which is already considered a specialty court, having exclusive jurisdiction over patent appeals cases from the U.S. District Courts. Over the past decade, more than 4000 patent infringement appeals cases have been filed in the CAFC. It is hoped that the pilot program in District Courts to enhance patent expertise among judges will result in fewer reversals at the appeals level.