[Congressional Record Volume 156, Number 164 (Monday, December 13, 2010)]
[Senate]
[Pages S8946-S8947]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 ESTABLISHING A PILOT PROGRAM TO ENCOURAGE ENHANCEMENT OF EXPERTISE IN 
                              PATENT CASES

  Mr. DURBIN. I ask unanimous consent that the Judiciary Committee be 
discharged from further consideration of H.R. 628 and the Senate 
proceed to its immediate consideration.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report the bill by title.
  The legislative clerk read as follows:

       A 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.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. DURBIN. I ask unanimous consent that a Leahy amendment at the 
desk be agreed to, the bill, as amended, be read a third time and 
passed, the motions to reconsider be laid upon the table, with no 
intervening action or debate, and any statements be printed in the 
Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 4801), in the nature of a substitute, was agreed 
to, as follows:

                (Purpose: In the nature of a substitute)

       Strike all after the enacting clause and insert the 
     following:

     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.--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, or certified to 
     the Director the intention to adopt, local rules for patent 
     and plant variety protection cases.
       (B) Selection of courts.--From amongst the district courts 
     that satisfy the criteria for designation under this 
     subsection, the Director shall select--
       (i) 3 district courts that each have at least 10 district 
     judges authorized to be appointed by the President, whether 
     under section 133(a) of title 28, United States Code, or on a 
     temporary basis under any other provision of law, and at 
     least 3 judges of the court have made the request under 
     subsection (a)(1)(A); and

[[Page S8947]]

       (ii) 3 district courts that each have fewer than 10 
     district judges authorized to be appointed by the President, 
     whether under section 133(a) of title 28, United States Code, 
     or on a temporary basis under any other provision of law, and 
     at least 2 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
       (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).

  The amendment was ordered to be engrossed and the bill read a third 
time.
  The bill (H.R. 628), as amended, was read the third time and passed.

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