[Congressional Record (Bound Edition), Volume 152 (2006), Part 15]
[House]
[Pages 20595-20597]
[From the U.S. Government Publishing Office, www.gpo.gov]




        ESTABLISHING A PILOT PROGRAM IN CERTAIN DISTRICT COURTS

  Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass 
the bill (H.R. 5418) to establish a pilot program in certain United 
States district courts to encourage enhancement of expertise in patent 
cases among district judges, as amended.
  The Clerk read as follows:

                               H.R. 5418

       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 
Wisconsin (Mr. Sensenbrenner) and the gentleman from Michigan (Mr. 
Conyers) each will control 20 minutes.
  The Chair recognizes the gentleman from Wisconsin.

                              {time}  1930


                             General Leave

  Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and include extraneous material on H.R. 5418, currently 
under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I rise in support of H.R. 5418 to establish a pilot 
program in certain U.S. district courts to encourage enhancements of 
expertise in patent cases among district judges. It is widely 
recognized that patent litigation has become too expensive, too time 
consuming, and too unpredictable. This addresses those concerns by 
authorizing a pilot program to improve the expertise of Federal 
district judges responsible for hearing patent cases.
  The need for such a program is apparent. Patent cases account for 
nearly 10 percent of complex cases and consume significant judicial 
resources. Despite the investment of the additional resources by 
district judges to these cases, the rate of reversal on claim 
construction issues remains excessive.
  One sitting Federal judge characterized the manner that the judiciary 
employs to resolve these cases as marked by ``institutional 
ineptitude.'' I would say, parenthetically, that that is a remarkable 
admission by a Federal judge.
  The premise underlying H.R. 5418 can be stated in three words: 
practice makes perfect. Judges who are able to focus more attention on 
patent cases are more likely to avoid error and thus reduce the 
likelihood of reversal.
  The bill requires the director of the Administrative Office of the 
Courts to select five district courts to participate in a 10-year pilot 
program to enhance judicial patent expertise. The bill specifies 
criteria that the director must employ in determining eligible 
districts and then preserves the continued random assignment of cases 
to prevent the pilot districts from becoming magnets for forum-shopping 
litigants.
  Finally, the legislation will require the director to provide both 
the House

[[Page 20596]]

 and Senate Judiciary Committees with periodic reports to help assess 
the program's efficiency and effectiveness.
  Mr. Speaker, the bill does not purport to comprehensively address all 
of the ill associated with patent litigation, nor does it seek to 
substantively amend the patient laws or the judicial process. However, 
the program established by this bill will enhance judicial expertise in 
this crucial area while providing Congress important information to 
further improve the administration of patent claims.
  Mr. Speaker, I commend the two gentlemen from California, Mr. Schiff 
and Mr. Issa, for introducing this bill. I urge Members to support this 
important legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I ask unanimous consent that the gentleman 
from California (Mr. Schiff) control time on our side.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  Mr. SCHIFF. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise today in support of H.R. 5418, legislation that I 
introduced with my colleague, Representative Issa, in order to 
establish a pilot program in the Federal district courts to encourage 
the enhancement of expertise in patent cases among district judges.
  I want to thank my colleague from California for his leadership and 
tenacity on this issue that has brought us to this place. I also want 
to thank the chairman and ranking member of the Judiciary Committee and 
the Chair and ranking member of the Subcommittee on the Courts, the 
Internet and Intellectual Property for working to bring the bill to the 
floor today.
  Mr. Speaker, I join with my colleague, Mr. Issa, in introducing this 
legislation because I believe it is a worthy proposal that is narrowly 
drafted and will provide us with valuable and important insight on the 
operation of patent litigation in the Federal court system.
  This patent pilot program, created under the bill, is designed to 
enhance expertise in patent cases among district judges, provides 
district courts with resources and training to reduce error rates in 
patent cases, and helps reduce the high cost and lost time associated 
with patent litigation.
  The legislation has received an impressive display of broad-based 
support from a wide-ranging spectrum of interested parties, including 
the technology industry, the pharmaceutical industry, the consumer 
electronics industry, biotech, intellectual property owners and other 
IP organizations, as well as a U.S. district chief judge.
  Several months ago, the Judiciary Subcommittee on the Courts, 
Internet and Intellectual Property held a hearing on improving Federal 
court adjudication of patent cases. At this hearing a number of 
proposed solutions were discussed, serious concerns were expressed with 
other proposals that would have called for the creation of a new 
specialized court as well as proposals that would move all patent cases 
to an existing specialized court.
  These concerns centered around the need to maintain generalist 
judges, random case assignment, and to maintain the important legal 
percolation that occurs currently among the various district courts.
  Our approach avoids these pitfalls and is a worthwhile program that 
Congress should establish on a test basis. It also bears mentioning 
that we have consulted very closely with the Administrative Office of 
the U.S. Courts, the representative of the Federal judiciary.
  Indeed, these discussions led to a number of important improvements 
to the legislation that are reflected in the final product. We are also 
pleased that companion legislation has been introduced in the other 
body by Senators Hatch and Feinstein.
  In closing, I would like to stress that while this legislation is an 
important first step to addressing needed patent reforms, I believe 
that Congress must continue to work to address a number of issues 
surrounding patent litigation that require broad-based reforms to our 
patent system.
  Mr. Speaker, I look forward to continuing my work with my colleagues 
on the Judiciary Committee and in Congress to address these issues
  Mr. Speaker, I reserve the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield such time as he may consume 
to the author of the bill, the gentleman from California (Mr. Issa).
  Mr. ISSA. Mr. Speaker, I will be brief, not because this is not a 
great piece of legislation. I am very proud of the work we have done on 
a bipartisan basis in our committee, but because the fact is, this is a 
piece of legislation whose time has come.
  This bill was voted unanimously out of the Judiciary Subcommittee and 
brought to the floor on suspension because in fact all of the details 
necessary to make a good piece of legislation were worked out with the 
community that will need it, use it, and benefit from it.
  That includes members of the Federal bench, the AO, the 
Administrative Office of the judicial branch. It also includes both 
branches here in the Capitol and members from the administration. I 
believe this is an example of bipartisan work at its finest.
  I thank my coauthor on this, Mr. Schiff, for working tirelessly on 
this, and for his good words. I would particularly like to thank the 
chairman, Mr. Sensenbrenner, and Mr. Conyers for taking the work we did 
in subcommittee as sufficient and bringing it quickly to the floor.
  Last but not least, I very much want to thank the staff of the 
subcommittee and the chairman and ranking member of the subcommittee, 
who encouraged us all along the way, held the necessary hearings, and 
have told us to do this and then do more.
  Mr. SCHIFF. Mr. Speaker, I want to acknowledge the superb work done 
by my colleague, who really was the driving force behind this 
legislation.
  Mr. SMITH of Texas. Mr. Speaker, H.R. 5418, a bill ``[t]o Establish a 
Pilot Program in Certain United States District Courts to Encourage 
Enhancement of Expertise in Patent Cases Among District Judges,'' 
deserves the support of the Members of the House.
  For the past 2 years, the Subcommittee on Courts, the Internet and 
Intellectual Property has conducted a thorough review of problems 
associated with the issuance of patents and the adjudication of patent 
claims.
  H.R. 5418 focuses on one aspect of patent litigation--the recognition 
that judges are too often inexperienced in dealing with technical areas 
of the law and that they rarely have the opportunity to have a patent 
case go all the way through trial.
  Patent cases equal only 1 percent of cases filed in U.S. District 
Courts but are responsible for nearly 10 percent of complex cases. On 
average, an individual federal judge has only 1 patent case go all the 
way through trial every 7 years, which means trial-level judges may 
have no more than 3 or 4 such cases over their entire judicial career.
  These statistics suggest judges could benefit from the development of 
greater expertise and that they might develop this ability by handling 
these cases, which are so vital to American companies.
  Mr. Speaker, the bill before us is designed to enable designated 
federal judges to have the opportunity to enhance their expertise in 
handling these cases and to measure the effects, if any, on patent 
litigation.
  Introduced by Representatives Darrell Issa and Adam Schiff, the bill 
followed an October 2005 Subcommittee oversight hearing on proposals to 
structurally reform the patent litigation system.
  This bipartisan measure was approved by the Subcommittee on July 27, 
2006 and approved by the full Judiciary Committee on September 13, 
2006.
  As amended, the bill will require the Director of the Administrative 
Office of the Courts to select 5 districts to participate in a 10-year 
pilot project.
  It will also require the Director, on a periodic basis, to prepare 
and report to Congress on aspects of the project and to make a 
recommendation on whether the program should be extended, expanded, or 
made permanent.
  Mr. Speaker, I urge my colleagues to support this bipartisan bill.
  Mr. Speaker, I yield back the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by

[[Page 20597]]

the gentleman from Wisconsin (Mr. Sensenbrenner) that the House suspend 
the rules and pass the bill, H.R. 5418, as amended.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

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