[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.
____________________