US Congress Considers Changes to Patent Laws and Specialized Patent Judiciary

A US House of Representatives Judiciary Subcommittee recently held hearings ("American Innovation at Risk: The Case for Patent Reform") to examine intellectual property laws and consider fundamental changes to the way that patents are awarded. The Subcommittee heard the testimony of four witnesses who criticized the existing patent system for awarding too many patents of poor quality, in that the inventions were not particularly novel or that they were somewhat obvious. The speakers asserted that poor quality patents lead to more litigation and stifle innovation. Even though there is consensus among American legislators that changes in patent law need to be made, there is much disagreement over what actions Congress should take. Judiciary Subcommittee Chair Berman (Democrat-CA) said that he and several colleagues will soon introduce a new patent bill in the House of Representatives. Berman said that any legislation should include funding to hire enough patent examiners and staff, and include "meaningful, low-cost alternatives to litigation." Meanwhile, Representative Boucher (Democrat-Va) urged a requirement that pending patent applications be made public after they are filed so the public could submit prior art, to give evidence that an invention is not novel. This measure would address the criticism that many questionable patents are awarded because patent examiners do not have enough time to identify all relevant prior art. Changes could also be made to the adjudication of patent disputes. A bill which has passed the US House of Representatives and is currently before the US Senate Judiciary Committee would create a pilot program for a specialized patent judiciary. The program would develop patent expertise among trial judges in an attempt to reduce the number of patent judgments that are overturned on appeal. Currently, about one-half of those judgments are reversed by the Federal Circuit. The pilot program would extend for 10 years and would start with judges in five US District Courts who volunteer to specialize in patent cases. The program would be evaluated after five years to determine:

• if it has succeeded in developing judges with expertise in patent law;
• if courts with specialist patent judges have become more efficient in conducting patent cases;
• if courts with specialist patent judges have lower rates of reversal on appeal than courts with regular judges;
• if litigants engage in forum shopping in an attempt to ensure a desired outcome; and
• if the program should be extended to other US District Courts or should be made permanent and apply to all District Courts.

For more information on the US House of Representatives Judiciary Subcommittee Hearing, see: http://news.com.com/2100-1014_3-6159962.html; and http://judiciary.house.gov/oversight.aspx?ID=271 For more information on the pilot program to create US trial judges who specialize in patent law, see: http://tinyurl.com/34ep6k ; and http://tinyurl.com/3xxsqf Summary by: Andrei Edwards