[Congressional Record Volume 153, Number 26 (Monday, February 12, 2007)]
[House]
[Pages H1430-H1433]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




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

  Mr. BERMAN. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 34) to establish a pilot program in certain United States 
district courts to encourage enhancement of expertise in patent cases 
among district judges.
  The Clerk read as follows:

                                H.R. 74

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. PILOT PROGRAM IN CERTAIN DISTRICT COURTS.

       (a) Establishment.--
       (1) In general.--There is established a program, in each of 
     the United States district courts designated under subsection 
     (b), under which--
       (A) those district judges of that district court who 
     request to hear cases under which one or more issues arising 
     under any Act of Congress relating to patents or plant 
     variety protection must be decided, are designated by the 
     chief judge of the court to hear those cases;
       (B) cases described in subparagraph (A) are randomly 
     assigned to the judges of the district court, regardless of 
     whether the judges are designated under subparagraph (A);
       (C) a judge not designated under subparagraph (A) to whom a 
     case is assigned under subparagraph (B) may decline to accept 
     the case; and
       (D) a case declined under subparagraph (C) is randomly 
     reassigned to one of those judges of the court designated 
     under subparagraph (A).
       (2) Senior judges.--Senior judges of a district court may 
     be designated under paragraph (1)(A) if at least 1 judge of 
     the court in regular active service is also so designated.
       (3) Right to transfer cases preserved.--This section shall 
     not be construed to limit the ability of a judge to request 
     the reassignment of or otherwise transfer a case to which the 
     judge is assigned under this section, in accordance with 
     otherwise applicable rules of the court.
       (b) Designation.--The Director of the Administrative Office 
     of the United States Courts shall, not later than 6 months 
     after the date of the enactment of this Act, designate not 
     less than 5 United States district courts, in at least 3 
     different judicial circuits, in which the program established 
     under subsection (a) will be carried out. The Director shall 
     make such designation from among the 15 district courts in 
     which the largest number of patent and plant variety 
     protection cases were filed in the most recent calendar year 
     that has ended, except that the Director may only designate a 
     court in which--
       (1) at least 10 district judges are authorized to be 
     appointed by the President, whether under section 133(a) of 
     title 28, United States Code, or on a temporary basis under 
     other provisions of law; and
       (2) at least 3 judges of the court have made the request 
     under subsection (a)(1)(A).
       (c) Duration.--The program established under subsection (a) 
     shall terminate 10 years after the end of the 6-month period 
     described in subsection (b).
       (d) Applicability.--The program established under 
     subsection (a) shall apply in a district court designated 
     under subsection (b) only to cases commenced on or after the 
     date of such designation.
       (e) Reporting to Congress.--
       (1) In general.--At the times specified in paragraph (2), 
     the Director of the Administrative Office of the United 
     States Courts, in consultation with the chief judge of each 
     of the district courts designated under subsection (b) and 
     the Director of the Federal Judicial Center, shall submit to 
     the Committee on the Judiciary of the House of 
     Representatives and the Committee on the Judiciary of the 
     Senate a report on the pilot program established under 
     subsection (a). The report shall include--
       (A) an analysis of the extent to which the program has 
     succeeded in developing expertise in patent and plant variety 
     protection cases among the district judges of the district 
     courts so designated;
       (B) an analysis of the extent to which the program has 
     improved the efficiency of the courts involved by reason of 
     such expertise;
       (C) with respect to patent cases handled by the judges 
     designated pursuant to subsection (a)(1)(A) and judges not so 
     designated, a comparison between the 2 groups of judges with 
     respect to--
       (i) the rate of reversal by the Court of Appeals for the 
     Federal Circuit, of such cases on the issues of claim 
     construction and substantive patent law; and
       (ii) the period of time elapsed from the date on which a 
     case is filed to the date on which trial begins or summary 
     judgment is entered;
       (D) a discussion of any evidence indicating that litigants 
     select certain of the judicial districts designated under 
     subsection (b) in an attempt to ensure a given outcome; and
       (E) an analysis of whether the pilot program should be 
     extended to other district courts, or should be made 
     permanent and apply to all district courts.
       (2) Timetable for reports.--The times referred to in 
     paragraph (1) are--
       (A) not later than the date that is 5 years and 3 months 
     after the end of the 6-month period described in subsection 
     (b); and
       (B) not later than 5 years after the date described in 
     subparagraph (A).
       (3) Periodic reporting.--The Director of the Administrative 
     Office of the United States Courts, in consultation with the 
     chief judge of each of the district courts designated under 
     subsection (b) and the Director of the Federal Judicial 
     Center, shall keep the committees referred to in paragraph 
     (1) informed, on a periodic basis while the pilot program is 
     in effect, with respect to the matters referred to in 
     subparagraphs (A) through (E) of paragraph (1).
       (f) Authorization for Training and Clerkships.--In addition 
     to any other funds made available to carry out this section, 
     there is authorized to be appropriated not less than 
     $5,000,000 in each fiscal year for--
       (1) educational and professional development of those 
     district judges designated under subsection (a)(1)(A) in 
     matters relating to patents and plant variety protection; and
       (2) compensation of law clerks with expertise in technical 
     matters arising in patent and plant variety protection cases, 
     to be appointed by the courts designated under subsection (b) 
     to assist those courts in such cases.
     Amounts made available pursuant to this subsection shall 
     remain available until expended.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
California (Mr. Berman) and the gentleman from Texas (Mr. Smith) each 
will control 20 minutes.
  The Chair recognizes the gentleman from California.
  Mr. BERMAN. Mr. Speaker, I yield myself such time as I may consume.
  (Mr. BERMAN asked and was given permission to revise and extend his 
remarks.)
  Mr. BERMAN. Mr. Speaker, I rise in support of H.R. 34 and ask my 
colleagues to join me in voting to pass this legislation. Last 
Congress, an identical bill passed unanimously through the Judiciary 
Committee and then passed by voice vote on suspension on the House 
floor.
  Patents are the cornerstone of our economy and provide incentives for 
innovation. Therefore, it is all the more important to continually 
assess the effect patent litigation has on the preservation of patent 
quality and intellectual property rights.
  H.R. 34 authorizes the Administrative Office of the United States 
Courts to establish pilot programs in the United States district courts 
where the most patent cases are filed. At minimum, five courts, spread 
over at least three circuits, will take part. To qualify, a court must 
have at least 10 judges, and at least three judges must request to take 
part in that program in each of the districts.
  The chief judge randomly assigns the patent cases. Should that judge, 
who is assigned the case, decline that assignment, one of the several 
judges who has opted to take part in the pilot program receives the 
case. Further, H.R. 34 requires the Director of the Administrative 
Office of the United States Courts to report to Congress on the pilot 
program's success in developing judicial expertise in patent law and 
authorizes funds to increase both judges' familiarity with patent law 
and provide additional funding for clerks.
  Patent law is an extremely complex body of law involving analysis of 
intricate technologies, and Federal district court judges spend an 
inordinate

[[Page H1431]]

amount of time on patent cases, even though patent cases only make up 1 
percent of the docket. The combination of the complex science and 
technology, the unique patent procedures and laws, the administration 
of the courts and their dockets, and the sheer number of issues raised 
by patent litigation makes improvement of the patent adjudication 
system a uniquely complicated, difficult, but necessary, task.
  The impetus behind this bill, in part, is the high reversal rate of 
district court decisions. The Federal Circuit Court of Appeals, which 
has exclusive jurisdiction over patent appeals, reverses over 30 
percent of the district court patent claim constructions. Critics 
assert that the high reversal rate is due to judicial inexperience and 
misunderstanding of patent law. The pilot program we are proposing here 
would address this problem by increasing judicial familiarity with 
patent law and providing funds to pay additional clerks to assist with 
patent cases.
  The Administrative Office of the United States Courts had concerns 
about the effect of the pilot program on randomness of assignments. 
Therefore, in an amended version of the bill, we address this issue by 
only allowing the district courts with a large enough pool of judges to 
participate in the pilot program. As a result of this change, at least 
three judges will take part in the program to ensure that the selection 
of a certain court does not mean the selection of a certain judge.
  Therefore, as the pilot program increases the expertise of judges who 
opt into the program, it also ensures that the selection of a certain 
district court is not outcome-determinative, and thus it does deter 
forum shopping.
  While recent accounts demonstrate that as time passes Federal 
district court judges are becoming more proficient at the application 
of patent claim construction rules, and while reversal rates are coming 
down, judicial inexperience in patent law still frequently gives weak, 
untested and presumptively valid patents the same kind of protection 
previously reserved for strong and judicially tested patents.
  As the importance of intellectual property continues to grow in our 
economy, we can expect that the Federal courts will spend even more 
time on patent cases. Thus, we must act now to improve the timeliness 
and quality of their decisions.
  A patent program, combined with a study of its results, serves as a 
valuable tool in assessing the ability of the courts to become more 
knowledgeable about the specific laws and technologies involved in 
patent cases. By providing extra resources and fostering judicial 
experience in patent law, we can lower the reversal rate of district 
court decisions and ensure that invalid patents do not receive 
protections.
  Questions have arisen about why the legislation is necessary. All 
Federal district judges should already be striving, obviously, to 
enhance their knowledge of patent law through extra classes and 
training. I want to make clear, this bill does not serve as a cushion 
for judges who shy away from patent law. Instead, H.R. 34 will assess 
the benefits of the channeling of patent cases towards judges with 
greater interest and expertise in patent law and determine whether the 
program improves patent quality and expedites the adjudication process. 
This bill is only a pilot program.
  Patent quality has been a long-time priority of mine, and I believe 
H.R. 34 is a first step to resolving some of the deficiencies in the 
patent system. But this in no way substitutes for comprehensive 
overhaul of the patent system designed to ensure that innovation is not 
at risk in the 21st century. By increasing judicial expertise in patent 
law, H.R. 34 should ultimately improve both patent quality and the 
litigation process.
  As I mentioned previously, this bill has the full support of the 
Judiciary Committee and many industries and trade groups, including the 
pharmaceutical, technology, biotech and consumer electronics industries 
and intellectual property owners and other intellectual property 
organizations.
  I encourage my colleagues to join me in supporting H.R. 34.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, it is widely recognized that patent litigation is too 
expensive, too time consuming, and too unpredictable. H.R. 34 addresses 
these concerns by authorizing the establishment of a pilot program in 
certain United States district courts that is intended to encourage the 
enhancement of expertise in patent cases among district judges.
  The need for such a program becomes apparent when one considers that 
fewer than 1 percent of all cases in U.S. district courts, on average, 
are patent cases and that a district court judge typically has a patent 
case proceed through trial only once every 7 years. These cases require 
a disproportionate share of attention and judicial resources, and the 
rate of reversal remains unacceptably high.
  The premise underlying H.R. 34 is simple. Practice makes perfect, or 
at least better. Judges who focus more attention on patent cases can be 
expected to be better prepared and make decisions that will hold up 
under appeal.
  This bill is the product of an extensive oversight hearing which was 
conducted by the Subcommittee on Courts, the Internet and Intellectual 
Property in October 2005. The authors of H.R. 34, Representatives 
Darrell Issa and Adam Schiff, introduced this measure on January 4, 
2007. This legislation is identical to H.R. 5418, a bill that passed 
the House unanimously last September. Unfortunately, the clock on the 
109th Congress expired before the other body could take up this 
bipartisan measure.
  Mr. Speaker, H.R. 34 will require the Director of the Administrative 
Office of the Courts to select five district courts to participate in a 
10-year pilot program that is to begin no later than 6 months after the 
date of enactment.
  The bill specifies criteria the director must employ in determining 
eligibility of districts. It contains provisions to preserve the random 
assignment of cases and to prevent the selected districts from becoming 
magnets for forum shopping litigants.
  The legislation also requires the director, in consultation with the 
director of the Federal Judicial Center and the chief judge of each 
participating district, to provide the Committees on the Judiciary of 
the House of Representatives and the Senate with periodic progress 
reports.
  Before closing, Mr. Speaker, I want to commend the superb job that 
the bill's sponsors did in seeking out and incorporating the advice of 
numerous experts as they developed this bipartisan legislation. 
Congratulations go to Congressmen Darrell Issa and Adam Schiff. Their 
success and cooperation have resulted in a worthy bill that deserves 
the support of the Members of the House.
  Mr. Speaker, I urge all Members to support this bill.
  Mr. Speaker, I reserve the balance of my time.

                              {time}  1445

  Mr. BERMAN. Mr. Speaker, I yield myself 30 seconds.
  I simply join with my friend the ranking member in complimenting both 
the gentleman from California (Mr. Issa) and the other gentleman from 
California (Mr. Schiff).
  If one could patent all of Mr. Issa's ideas, the Patent Office would 
truly be backlogged for a very long time.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Speaker, I yield 5 minutes to the gentleman 
from North Carolina (Mr. Coble), the ranking member of the Intellectual 
Property Subcommittee and a former chairman of the Intellectual 
Property Subcommittee.
  Mr. COBLE. Mr. Speaker, I thank the distinguished gentleman from 
Texas for yielding.
  And I probably won't use 5 minutes, but, Mr. Speaker, 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, is a bill that deserves the continued support of the Members of 
the House. As has been indicated both by Mr. Berman and Mr. Smith, 
drafted by Representatives Issa and Schiff, this bipartisan legislation 
was passed unanimously by the House last year, but due to the press of 
time the other body did not consider the measure. With House action 
early in this Congress, we will be able to ensure our colleagues on the 
other side of the Hill have maximum

[[Page H1432]]

opportunity to fully and fairly consider this legislation.
  Mr. Speaker, it is no secret that our Nation's patent laws have 
become the subject of much scrutiny and debate. Indeed, Judiciary 
Committee Ranking Member Lamar Smith and the chairman of the 
Intellectual Property Subcommittee, Representative Howard Berman, with 
whom I look forward to working this Congress, have been leaders in 
developing substantive and comprehensive reforms to our Nation's patent 
system. The further consideration of these proposals is the IP 
Subcommittee's highest priority this Congress. I am encouraged and 
hopeful that we will be able to look back at the end of the 110th 
Congress satisfied that we ran the course and completed this important 
task.
  But there is related work this House can complete immediately that 
will serve as a step in the right direction. By passing H.R. 34, a 
commonsense and narrowly tailored measure that will provide designated 
Federal district judges the opportunity to improve their expertise in 
the handling of patent cases, the House will be taking an early, 
positive first step along the road to comprehensive patent reform.
  Mr. Speaker, a typical Federal district judge may preside over no 
more than three or four, five at the most, patent cases which are 
litigated to conclusion during the course of his or her career. Patent 
cases comprise only 1 percent of cases filed in Federal court, yet they 
make up nearly 10 percent of complex cases. The timely and appropriate 
resolution of these cases is vital to uphold the rights of individual 
litigants. But it also serves the larger interests of consumers and the 
economy.
  Patent litigation, Mr. Speaker, is characterized by disputes that 
involve the interaction of numerous parties, the integration of 
sophisticated technologies, and the application of technical aspects of 
substantive patent law by judges who are rarely presented with such 
cases.
  Mr. Speaker, H.R. 34 is a modest bill that will enable a small number 
of these district judges to be designated to gain additional experience 
and resources in handling these cases, the outcome of which is so 
crucial to our economy.
  This legislation also includes safeguards to prevent these districts 
from being used to promote ``forum shopping'' as well as provisions to 
ensure that the Congress is provided with useful periodic reports on 
the progress of this new initiative.
  Again, I thank the distinguished gentleman from California (Mr. 
Berman), the distinguished gentleman from Texas (Mr. Smith), and 
Representatives Schiff and Issa for their work.


                             General Leave

  Mr. BERMAN. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days to revise and extend their remarks on H.R. 34.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from California?
  There was no objection.
  Mr. BERMAN. Mr. Speaker, I have no further requests for time, and I 
reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Speaker, I yield 5 minutes to the gentleman 
from California (Mr. Issa), a member of the Intellectual Property 
Subcommittee and one of the two principal sponsors of this very worthy 
legislation.
  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

[[Page H1433]]

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.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise to support of H.R. 34, 
which authorizes a new 10-year pilot program designed to increase 
judges' expertise in presiding over patent cases. Under the new pilot 
program, district judges could request to hear cases relating to patent 
law or plant variety protection. Currently, cases in Federal district 
courts are assigned randomly. Under the measure, if one judge declines 
to hear a patent case, the case could be reassigned to one of the 
judges in the pilot program who has requested to hear such cases.
  The bill directs the Administrative Office of the Courts, within six 
months of enactment, to designate at least five courts in at least 
three different judicial circuits in which the pilot program would be 
conducted. It requires that these districts for the pilot program be 
chosen from the 15 districts that have had the largest number of patent 
and plant variety protection cases filed within the past year, and that 
the pilot program is conducted in districts in which at least three 
judges will participate. It also requires the administrative Office of 
the Courts to submit periodic reports to the Committee on the Judiciary 
for the House and the Senate regarding the effectiveness of the pilot 
program.
  Mr. Speaker, H.R. 34 enjoys strong bipartisan support in the 
Judiciary Committee. I urge my colleagues to support this pilot 
program.
  Mr. SMITH of Texas. Mr. Speaker, I have no further requests for time, 
and I yield back the balance of my time.
  Mr. BERMAN. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from California (Mr. Berman) that the House suspend the rules 
and pass the bill, H.R. 34.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

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