The U.S. House of Representatives has voted to establish a pilot program in some U.S. district courts to enhance judicial expertise on patent law among federal judges. The impetus behind the pilot program is, in part, the high reversal rate of district court decisions in patent cases. The Federal Circuit Court of Appeals, which has exclusive jurisdiction of patent appeals, reverses over 30 percent of district court claim constructions. The pilot program is intended to address this problem by increasing judicial familiarity with patent law and providing funds to pay additional judicial law clerks to assist with patent cases.

Under H.R. 34, introduced by Representative Darrell Issa (R-Calif.) and Representative Adam Schiff (D-Calif.), in district courts participating in the pilot program, each judge will affirmatively choose whether or not to hear patent cases. When a new patent case is filed, it will, like all new cases, be randomly assigned to the entire pool of judges within that district court. If the case is randomly assigned to a judge who has opted to hear patent cases, that judge will keep the case. However, if a judge has opted-out of the pilot program and a patent case is randomly assigned to that judge, the judge may either keep the case or have the case randomly assigned to a judge who has opted-in to the program.

The legislation requires the Director of the Administrative Office of the United States Courts to designate not less than 5 district courts, in at least 3 different judicial circuits, from among the 15 district courts nationwide in which the largest number of patent cases were filed. However, to participate in the pilot program, a district court must have at least 10 authorized judges with at least 3 judges opting-in to the pilot program.

The legislation authorizes up to $5 million per year for educational and professional development related to patent law to be made available to judges who have opted-in to hearing patent cases. These funds will also be used to compensate law clerks with expertise in technical matters that arise in patent cases. The pilot is to run for 10 years, with periodic and formal reporting to Congress on the pilot program's success in developing judicial expertise in patent cases and a comparison of the rate of reversal by the Federal Circuit Court of Appeals of judges participating in the pilot program and non-participating judges.

The legislation now moves to the Senate. We will update our clients as there are further developments and/or final approval of the pilot program.