[Congressional Record Volume 155, Number 46 (Tuesday, March 17, 2009)]
[House]
[Pages H3456-H3459]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               AUTHORIZING PILOT PROGRAM FOR PATENT CASES

  Mr. JOHNSON of Georgia. Mr. Speaker, I move to suspend the rules and 
pass the bill (H.R. 628) 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 the title of the bill.
  The text of the bill is as follows:

                                H.R. 628

       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 1 or more issues arising 
     under any Act of Congress relating to patents or plant 
     variety protection are required to 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 1 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.--
       (1) In general.--Not later than 6 months after the date of 
     the enactment of this Act, the Director of the Administrative 
     Office of the United States Courts shall designate not less 
     than 6 United States district courts, in at least 3 different 
     judicial circuits, in which the program established under 
     subsection (a) will be carried out.
       (2) Criteria for designations.--
       (A) In general.--Except as provided under subparagraph (B), 
     the Director shall make designations under paragraph (1) 
     from--
       (i) 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; or
       (ii) the district courts that have adopted local rules for 
     patent and plant variety protection cases.
       (B) Exceptions.--The Director may only designate a court in 
     which--
       (i) 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
       (ii) 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) Reports 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

[[Page H3457]]

       (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 reports.--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.--
       (1) In general.--In addition to any other funds made 
     available to carry out this section, there are authorized to 
     be appropriated not less than $5,000,000 in each fiscal year 
     for--
       (A) educational and professional development of those 
     district judges designated under subsection (a)(1)(A) in 
     matters relating to patents and plant variety protection; and
       (B) 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.
       (2) Availability of funds.--Amounts made available pursuant 
     to this subsection shall remain available until expended.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Georgia (Mr. Johnson) and the gentleman from Texas (Mr. Smith) each 
will control 20 minutes. The Chair recognizes the gentleman from 
Georgia.


                             General Leave

  Mr. JOHNSON of Georgia. Mr. Speaker, I ask unanimous consent that all 
Members have 5 legislative days to revise and extend their remarks and 
include extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Georgia?
  There was no objection.
  Mr. JOHNSON of Georgia. I yield myself such time as I may consume.
  Mr. Speaker, this bill will create a pilot program to help enhance 
district court expertise in patent cases. The United States patent 
system leads the world in its strength and effectiveness. For over two 
centuries, the incentives for innovation it supports have helped create 
the world's strongest economy. But to ensure that it continues to play 
this role, we must be mindful of whether it is working as efficiently 
as it could be and whether we can improve it.
  In recent years, concern has arisen over the expense and duration of 
patent litigation, as well as the lack of consistency in the patent 
decisions that are handed down by district courts. This bill should 
help address both of those concerns. It is widely believed that the 
lack of experience and expertise that most district court judges have 
with respect to patent and plant variety protection cases is 
responsible for the wide divergence in their decisions in these cases 
and their high rate of reversal on appeal.
  This bill establishes a pilot program to enable interested judges in 
certain district courts to gain increased expertise in adjudicating 
complex and technical patent and plant variety protection cases. This 
will create a cadre of judges who gain advanced knowledge of patent and 
plant variety protection through more intensified experience in 
handling the cases, along with special education and career development 
opportunities.
  This should bring greater predictability in patent and plant variety 
protection decisions, as well as greater efficiency in the processing 
of all cases. The bill also sets forth reporting requirements to 
Congress, which will help us guide our future efforts to further 
improve the patent system.
  H.R. 628 has bipartisan support in the Judiciary Committee and broad 
support from the patent bar and affected industry and trade groups. In 
2006 a nearly identical bill, H.R. 5418, was reported by the Judiciary 
Committee and passed the House under suspension. The legislation passed 
the House again under suspension in the last Congress.
  I urge my colleagues to join me in supporting it now.
  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. 628 
addresses these concerns by authorizing a pilot program in certain 
United States district courts to promote patent expertise among 
participating judges. The need for such a program becomes apparent when 
one considers that less than 1 percent of all cases in U.S. district 
courts 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, unfortunately, remains unacceptably high.
  The premise underlying H.R. 628 is that practice makes perfect, or at 
least better. Judges who regularly focus on patent cases can be 
expected to make better decisions.
  Introduced by our colleagues Darrell Issa and Adam Schiff, this bill 
is identical to legislation that the House passed unanimously under 
suspension of the rules in the last two Congresses. H.R. 628 requires 
that the Director of the Administrative Office of the Courts to select 
six district courts to participate in a 10-year pilot program that 
begins no later than 6 months after the date of enactment.
  This bill requires the director to provide the Committees on the 
Judiciary of the House of Representatives and the Senate with periodic 
progress reports. These reports will enable Congress and the courts to 
evaluate whether the pilot program is working, and, if so, whether it 
should be made permanent.
  Mr. Speaker, this is a creative bill that will improve the 
application of patent law. I want to really take a moment to thank 
again Mr. Issa, the gentleman from California, for this creative idea 
coming up with this bill, and also for his personal expertise. Mr. Issa 
actually holds 37 patents, which I suspect is far more than any other 
Member of Congress has ever held in the history of this institution, so 
he knows whereof he speaks. It is no surprise he has come up with this 
very productive and constructive piece of legislation. And we are very 
pleased he is also a leader on the Judiciary Committee as well.
  I urge my colleagues to support this legislation.
  Mr. Speaker, I ask unanimous consent to yield the balance of my time 
to the gentleman from California (Mr. Issa).
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Texas?
  There was no objection.
  The SPEAKER pro tempore. The gentleman from California will control 
the balance of the time.
  Mr. JOHNSON of Georgia. Mr. Speaker, first I would like to thank the 
gentleman from California (Mr. Issa) for his leadership on this bill. 
It has been his bill for four sessions of Congress. That tells you how 
much we need to do in order to do something we should have done a while 
ago. So I'm glad to support you on this, Mr. Issa.
  Also I thank the ranking member of the Judiciary Committee, Mr. 
Lamont Smith of Texas, for his work in bringing this bill to the floor 
in the 111th Congress.
  Mr. Speaker, I yield 3 minutes to the honorable gentleman from 
California, Adam Schiff.
  Mr. SCHIFF. I thank the gentleman.
  Mr. Speaker, I want to join in acknowledging the leadership of my 
colleague, Darrell Issa from California, in developing this bill. He 
has fought hard for it for several years now. We are hoping this is the 
time we succeed. We have a deep interest in improving the efficiency of 
the patent process, in taking a lot of the costs out, some of the 
litigation costs and the inefficiencies in the patent review, and also 
by improving the quality of patents. We are at present trying to work 
on those broader patent reforms. We hope we can succeed with those. 
This bill is a win-win situation. Through it, we can expand upon the 
knowledge and expertise of the courts that decide patent issues. We can 
allow the courts to identify judges that have an interest in this area 
and that want to engage in further education to improve the quality of 
decision making.

[[Page H3458]]

  Unfortunately, these cases are often very complex. The result is that 
you get decisions that are too often reversed on appeal. So to the 
degree that we can encourage some specialization in the district 
courts, improve the cost quality of decisions in the court process, we 
can reduce costs and we can improve the process.

                              {time}  1330

  So I think that this pilot project is a very important step forward.
  Again, I want to congratulate my colleague. I know how hard he has 
worked on this. It is good to have somebody with the experience of 
getting a patent himself. I have some fabulous patent ideas, 
multimillion-dollar ideas. I haven't gotten them patented yet. But when 
I do, I want to make sure that there is a good, efficient system. And 
should anyone have the unmitigated temerity to actually challenge one 
in court, I want judges who are well educated and understand that my 
patent is valid and any claim to the contrary is without merit.
  I congratulate my colleague, thank him for his superb work, and urge 
my fellow colleagues to support the bill.
  I rise today in support of H.R. 628, legislation that will enhance 
expertise in patent cases among district judges, provide district 
courts with resources and training to reduce the error rates in patent 
cases, and help reduce the high cost and lost time associated with 
patent litigation.
  I joined my colleague Mr. Issa in introducing this legislation 
because I believe this proposal will provide us with valuable and 
important insight on the operation of patent litigation in the federal 
court system.
  In the 109th Congress, the Judiciary Subcommittee on Courts, the 
Internet, and Intellectual property held a hearing on improving federal 
court adjudication of patent cases in response to high rates of 
reversal at the Federal Circuit. At this hearing, a number of proposed 
options to address this issue were discussed. Serious concerns were 
expressed with a number of proposals, including those that would create 
new specialized courts and those that would move all patent cases to 
existing specialized courts.
  These concerns centered around the need to maintain generalist 
judges, to preserve random case assignment, and to continue fostering 
the important legal percolation that currently occurs among the various 
district courts. Our proposal aims to avoid these pitfalls.
  H.R. 628 establishes a mechanism to steer patent cases to judges that 
have the desire and aptitude to hear such cases, while preserving the 
principle of random assignment in order to prevent forum shopping among 
the pilot districts.
  The legislation will also provide the Congress and the courts with 
the opportunity to assess the program on a periodic basis. Reports will 
examine whether the program succeeds in developing greater expertise 
among participating District judges, the extent to which the program 
contributes to improving judicial efficiency in deciding these cases, 
and whether the program should be extended, expanded or made permanent.
  By providing our courts with the resources they need to carefully 
consider patent cases, we will ultimately save the American taxpayer 
money.
  The legislation has been passed by the House in the 109th and 110th 
Congresses. We are pleased that companion legislation has been 
introduced by Senator Specter, and we hope that the other body will act 
on this proposal this Congress.
  While this legislation is an important first step at addressing 
needed patent reforms, I believe that Congress must continue to work on 
a more comprehensive reform of our patent system. I look forward to 
continuing my work with my colleagues in the Judiciary Committee and in 
Congress to address these issues.
  Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
  I want to thank my partner in this bill, Adam Schiff. For three 
Congresses in a row, we have worked together and enjoyed a luxury of 
riches. The bill passes unanimously on suspension, only to be not quite 
broad enough to appeal to some people in the Senate. I think many of 
those questions were worked out by agreement in the last Congress, and 
I believe we have a real chance of moving this bill into law in this 
Congress.
  I thank Mr. Johnson and the ranking member, Howard Coble, for both 
being cosponsors of this bill. I believe we have made some technical 
adjustments that will inspire not just the three districts of 
California, but also Massachusetts, New Jersey and some of the other 
major areas in which these types of legislation have run into a lot of 
problems, particularly the fact that we have amended the bill to 
support those jurisdictions which adopt local rules even if they would 
otherwise not be eligible that would allow for this type of 
specialization.
  On that word, I want to make sure that everyone in the Congress 
understands, on both sides of the dome, that when we say 
specialization, we are not trying to create a specialty court; just the 
opposite. We are trying to save the district court as we know it. I 
have had a number of patents properly adjudicated both as a defendant 
and as a plaintiff, and what I have discovered is that the judges, 
given the tools at the district court level and given the opportunity 
to practice more frequently, or at least having at least one judge who 
has practiced more frequently, they will adjudicate these cases 
properly. They will make good Markman decisions, and they will in fact 
understand the nuances of patent. Without that expertise lying in each 
of the district courts, particularly the large ones, we undoubtedly 
will continue to have cases which get ping-ponged around and which get 
decided, unfortunately, incorrectly the first time and only decided 
correctly after they have come back from the Fed circuit.
  So as many have called for the creation of a specialty court similar 
to the appellate court, the Fed circuit, we are trying here through 
this patent pilot to do just the opposite: to retain at the district 
court closest to the people the opportunity to have their patents 
heard, but to provide them the additional tools necessary to do it, and 
as was said very kindly by both Mr. Schiff and Mr. Johnson, to give 
them the frequency of those judges who would like to have that 
frequency of doing more than one case every seven years. So with that, 
I again urge passage of this bill.
  I reserve the balance of my time.
  Mr. JOHNSON of Georgia. Mr. Speaker, may I inquire as to how many 
more speakers the gentleman from California has?
  Mr. ISSA. I would make myself the last speaker, if the gentleman is 
prepared to close.
  Mr. JOHNSON of Georgia. I am prepared to close if you are.
  Mr. ISSA. I yield myself 30 seconds to again recognize that this bill 
has passed this House overwhelmingly repeatedly. This time I believe we 
have perfected on a bipartisan basis with a companion, including 
Senator Specter in the Senate, the ability to move this as a separate 
freestanding bill quickly, and then I look forward to working 
particularly with Adam Schiff on these many other pieces of legislation 
and other reforms that we have talked about at length, and of course 
with the chairman of the subcommittee, Mr. Johnson.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in strong support of 
H.R. 628, the ``Patent Judges Pilot Program in Certain District 
Courts.'' I urge my colleagues to support this bill. This bill will 
provide more expertise in skill in a difficult area of law: patent law. 
Americans hold the patents and patent law as important integral to our 
very lives. Patents reward ingenuity and creativity.
  As the Blackberry litigation demonstrated, deficiencies in the 
current system have the ability to paralyze America. Indeed, the New 
York Times noted that ``[something] has gone very wrong with the United 
States patent system.'' The Financial Times opined that ``[i]t is time 
to restore the balance of power in U.S. patent law.'' Indeed, there has 
been a cry for change in the patent system and increased expertise for 
many years now.
  The Constitution mandates that we ``promote the progress of science 
and the useful arts . . . by securing for limited times to . . . 
inventors the exclusive right to their . . . discoveries.'' In order to 
fulfill the Constitution's mandate, we, as Members of Congress, must 
examine the system periodically to determine whether there may be flaws 
in the system that may hamper innovation, including the problems 
described as decreased patent quality, prevalence of subjective 
elements in patent practice, patent abuse, and lack of qualified 
persons to study patent law. H.R. 628 attempts to correct some of these 
problems.
  H.R. 628 creates a pilot program to increase the expertise of U.S. 
District Court judges who wish to hear cases that involve issues 
related to patents or plant variety protection. The bill provides for 
the designation of not less than 6 United States district courts in at 
least 3 different circuits to take part in the pilot program. In the 
designated courts, judges who elect to hear patent or plant variety 
protection cases will be designated to do so by the chief judge. Cases 
will be assigned randomly, but undesignated judges may decline to 
accept patent

[[Page H3459]]

and plant variety protection cases. The bill authorizes the expenditure 
of not less than $5 million per year for up to 10 years to pay for the 
educational and professional development of designated judges, and for 
compensation for law clerks with technical expertise related to patent 
and plant variety protection cases to be appointed by the designated 
courts.

  The high cost of patent litigation is widely publicized. It is not 
unusual for a patent suit to cost each party upwards of $10 million. 
Appeals from United States district courts to the Federal Circuit are 
frequent, in part because of the perception within the patent community 
that most district court judges are not sufficiently prepared to 
adjudicate complex, technical patent cases. In 2008, 45 percent of the 
patent cases that were appealed to the Federal Circuit were reversed in 
whole or in part or vacated and remanded. This bill seeks to promote 
consistency among United States district courts by increasing the 
expertise of district court judges, thus providing for more certainty 
in intellectual property protection.
  Taken together, these improvements would bring the American patent 
system up to speed for the twenty-first century. Instead of remaining a 
hindrance to innovation and economic growth, the patent system should 
work for inventors, ensuring America's patent system remains the best 
in the world and prevents risks to innovation.
  I am encouraged by this bill, and I am hopeful that minorities and 
women take advantage of this pilot program. The patent judges pilot 
program and pilot program for law clerks provides for the educational 
and professional development of the designated district judges in 
matters relating to patent and plant variety protection, and for 
compensating law clerks with expertise in technical matters arising in 
patent and plant variety protection cases. This is yet another step 
that America is taking to ensure that its patent system is the best in 
the world. I urge my colleagues to support this bill.
  Mr. Speaker, I yield back the balance of my time.
  Mr. JOHNSON of Georgia. 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 Georgia (Mr. Johnson) that the House suspend the rules 
and pass the bill, H.R. 628.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. ISSA. Mr. Speaker, I object to the vote on the ground that a 
quorum is not present and make the point of order that a quorum is not 
present.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this motion will be 
postponed.
  The point of no quorum is considered withdrawn.

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