[Congressional Record Volume 156, Number 167 (Thursday, December 16, 2010)]
[House]
[Pages H8536-H8539]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               AUTHORIZING PILOT PROGRAM FOR PATENT CASES

  Ms. CHU. Mr. Speaker, I move to suspend the rules and concur in the 
Senate amendment to 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 Senate amendment is as follows: 
       Senate amendment:
       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.

[[Page H8537]]

       (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
       (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 SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
California (Ms. Chu) and the gentleman from Texas (Mr. Poe) each will 
control 20 minutes.
  The Chair recognizes the gentlewoman from California.


                             General Leave

  Ms. CHU. 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 
gentlewoman from California?
  There was no objection.
  Ms. CHU. I yield myself such time as I may consume.
  Mr. Speaker, this bill seeks to create a pilot program that will 
enhance district court expertise in patent cases.
  Patent litigation is complex and highly technical. This makes 
litigation expensive, time consuming, and unpredictable. Moreover, the 
reversal rate of district court decisions is high, hovering around 50 
percent. The bill before us today, H.R. 628, seeks to increase 
efficiency and consistency in patent and plant variety protection 
litigation and reduce the reversal rate.
  The pilot program created by this bill would enable interested judges 
in certain district courts to develop expertise in adjudicating patent 
and plant variety protection cases. This will create a cadre of judges 
who have advanced knowledge of patent and plant variety protection due 
to more intensified experience in handling the cases, along with 
special education and career development opportunities.
  By providing judges with more training and experience in patent law, 
this country will have fairer and more predictable decisions resulting 
in a positive effect on the economy as a whole, as businesses will be 
able to allocate more time to inventing and less time litigating.
  The program would involve six of the Nation's 94 judicial districts 
on a strictly voluntary basis. Note this is just a pilot program; and 
unless Congress chooses to renew it, it will automatically expire after 
10 years. The bill mandates reporting requirements to Congress that 
will help guide our future efforts to further improve the patent 
system. We will monitor the effects of this program closely.

                              {time}  1300

  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. This Congress, 
back in March of 2009, this House passed H.R. 628. This amended version 
before us today expands the number of districts that are eligible to be 
chosen for this program.
  I want to particularly note the efforts of my friends on both sides 
of the aisle, Representative Issa and Representative Schiff, whose 
tireless and substantial personal efforts shepherded this bill from 
start to finish--and we are close to the finish line.
  I urge my colleagues to once again join me in supporting this bill.
  I reserve the balance of my time.
  Mr. POE of Texas. Mr. Speaker, I yield myself as much time as I may 
consume.
  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 
fewer than 1 percent of all the cases in United States district courts, 
on average, are patent cases and that a district court judge typically 
has a patent case proceed through trial once every 7 years. 
Nevertheless, these cases account for 10 percent of complex cases, and 
they require a disproportionate share of attention and judicial 
resources.
  Notwithstanding the investment of additional time and resources, the 
rate of reversal on claim construction issues--the correct 
interpretation of which is central to the proper resolution of these 
cases--is unacceptably high. The premise underlying H.R. 628 is, 
succinctly stated, practice makes perfect, or at least better. Judges 
who focus more attention on patent cases will be expected to be better 
prepared to make decisions that can withstand appellate scrutiny.
  The bill that we have before us today is the product of extensive 
oversight hearing that focused on proposals to improve patent 
litigation, which was conducted by the Subcommittee on Courts, the 
Internet, and Intellectual Property in October of 2005. This litigation 
is similar to H.R. 34 from the 110th

[[Page H8538]]

Congress and H.R. 5418, a bill that passed the House unanimously during 
the 109th Congress. More recently, the House passed H.R. 628 on March 
17, 2009. The other body passed the legislation with amendments on 
December 13. The new changes improve the measure by eliminating a $10 
million authorization and by expanding the bill's application to 
smaller judicial districts.
  Mr. Speaker, H.R. 628 requires the director of the Administrative 
Office of the Courts to select at least six district courts to 
participate in a 10-year pilot program that begins no later than 6 
months after the date of enactment. The bill specifies criteria the 
director must employ in determining eligible district courts. It also 
contains provisions to preserve the random assignment of cases and to 
prevent the selected districts from becoming magnets for forum-shopping 
litigants and lawyers.
  The litigation additionally 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. These reports will enable the Congress and the courts to 
evaluate whether the pilot program is working and, if so, whether it 
should be made permanent.
  Mr. Speaker, the bill does not substantially amend the patent laws or 
the judicial process, nor does it serve as a substitute for 
comprehensive patent reform that is needed. Rather, H.R. 628 constructs 
a foundation that future Congresses and the courts may use to assess 
the merits of future related proposals.
  Before closing, Mr. Speaker, I would like to take a moment to commend 
the superb job that the bill's sponsors, Representatives Issa and 
Schiff, did in seeking out and incorporating the advice of numerous 
experts as they developed this bipartisan important legislation. Their 
success and cooperation have resulted in a good bill that deserves the 
support of Members of the House on both sides of the aisle. I urge 
Members to support this bill.
  I reserve the balance of my time.
  Ms. CHU. Mr. Speaker, I am pleased to yield 3 minutes to the 
gentleman from California (Mr. Schiff), the sponsor of the bill.
  Mr. SCHIFF. Mr. Speaker, I rise in support of H.R. 628, and I want to 
begin by acknowledging the leadership of my colleague Darrell Issa from 
California in developing this bill. I joined with Mr. Issa to introduce 
this important legislation back in the 109th Congress. It has not been 
a short road to get here today to hopefully enact this bill, but we 
would not have made it without his leadership.
  I partnered with Mr. Issa on the bill because we share a deep 
interest in improving the efficiency of the patent process, in reducing 
litigation costs and inefficiencies in patent review, and also in 
improving the quality of patents. This bill, in part, grew from a 
hearing in the 109th Congress on improving Federal court adjudication 
of patent cases in response to high rates of reversal. At this hearing, 
a number of proposed options to address this issue were discussed. 
Serious concerns were expressed about 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 the 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 taxpayer money.
  While this legislation is an important step at addressing needed 
patent reforms, I believe that Congress must continue to work on a more 
comprehensive reform of our patent system, and I look forward to 
continuing my work with my colleagues in order to address these issues.
  Mr. POE of Texas. Mr. Speaker, I yield such time as he wishes to 
consume to the gentleman from California (Mr. Issa), who is a sponsor 
of this bill.
  Mr. ISSA. Mr. Speaker, it's been 8 years since this bill began being 
kicked around as a pilot. Some people would be less happy to announce 
it than I, but I would like to find them. Eight years ago when I began 
the dialogue with my colleagues, then the subcommittee ranking member, 
Mr. Berman, said, Tell me more about this problem. And I told him from 
life experience of the problem of these very talented judges, 
magistrates, and Federal judges who wanted to do a good job on patents, 
but it was almost always their first patent, and they lacked a support 
system to make it happen in both large and small districts. I told them 
how the southern district of San Diego had found ways to try to improve 
the system, gleaning some additional expertise from one or two judges 
who preferred these cases over some others and who actually sought them 
out. I also told some of my fellow colleagues about the horror stories 
of a magistrate ascending to the bench, finding that what he got from 
each of the other members were all their patent cases, and suddenly he 
had a backlog of these, had to find out what a Markman hearing was, had 
to start getting into technical issues, one on electronics, another on 
biotech, another one on telecommunications.
  So over the years, we have all been educated well beyond that initial 
anecdotal example. Then Orrin Hatch, Chairman Hatch, was supportive. 
Now Chairman Leahy is supportive. All along the way, my classmate Adam 
Schiff has been supportive, along with both chairman, and ranking 
member at times, Howard Berman. Chairman Conyers has continued to be 
supportive and has helped me, along with Ranking Member Lamar Smith, 
vote this out early on in this Congress.

                              {time}  1310

  But I have a special thanks for Chairman Leahy who made sure this 
bill was pulled out of the comprehensive patent reform bill because its 
time truly had come to begin saying to judges throughout the country 
that, in fact, we were going to help them help themselves be better at 
this. Although it's called patent pilot, over the years it has been 
expanded to the number of jurisdictions that it could be used in to 
where it's become quite clear that this will be a challenge to be 
expanded countrywide in whatever format the study shows is best.
  I find that this Congress, in its lame duck session, has done a few 
good things. No surprise that this is one that I think is particularly 
good, particularly good because, as Congressman Schiff just said, we 
are, in fact, dealing in the lame duck session with a problem that has 
been pervasive since before Congressman Schiff and I became Members of 
this body 10 full years ago.
  So as I thank each of you for your passage of this bill, and with 
full confidence that this will become a broader consensus throughout 
the Federal system, I also join with my friend and colleague Adam 
Schiff in saying that the next Congress, in the early days, we must 
truly dedicate ourselves to comprehensive patent reform, to take each 
of the major issues that have been difficult and have, Congress after 
Congress, failed to become law, and find ways to resolve some or all of 
them for the good of the American people who find themselves spending 
2, 3 or 8 or $10 million on what can often be a frivolous suit.
  Again, Mr. Poe, I thank you for yielding me the time. I ask all my 
colleagues to vote for this small but important change in patent law.
  Mr. Speaker, I rise today in support of H.R. 628, 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.

[[Page H8539]]

  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. 628 establishes a pilot project within at least six 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, or certify that they have adopted local rules for patent and plant 
variety protection cases.
  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. 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. 628 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. 628 
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 Senators Hatch and Leahy. I also thank my staff 
and the committee staff who worked so hard to make this possible.
  I encourage all of my colleagues to support H.R. 628.
  Ms. CHU. Mr. Speaker, I have no further speakers, and I reserve the 
balance of my time.
  Mr. POE of Texas. I yield myself as much time as I may consume.
  Mr. Speaker, patent law is complicated. It is difficult. It is messy. 
Now, that's why law schools have a special track for those that want to 
be patent lawyers. They get their own certification, in many law 
schools, because it is so complicated. And then when those cases go to 
court, they need to be presented to a judge that has a lot of 
experience in patent law. It is a difficult, complex legal issue in 
almost every case. And those cases take, sometimes, years before they 
are resolved in court, then on appeal, and the reversal rate is 
extremely high.
  This legislation, hopefully, corrects that problem in giving those 
district judges that want to hear these cases that special expertise in 
hearing a great number of these cases, becoming experts and 
understanding the law, the complexities of the law and, hopefully, 
getting a better and quicker result in the courtrooms of the United 
States. I support this legislation.
  I want to commend, once again, the two representatives from 
California, Mr. Schiff and Mr. Issa, for their long endurance over 
sponsoring this legislation.
  Mr. Speaker, I yield back the balance of my time.
  Ms. CHU. Mr. Speaker, I yield back the balance of my time
  The SPEAKER pro tempore (Mr. Weiner). The question is on the motion 
offered by the gentlewoman from California (Ms. Chu) that the House 
suspend the rules and concur in the Senate amendment to 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.
  Ms. CHU. 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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