April 22, 2016


By George H. Spencer,  Counsel,  Roberts Mlotkowski  Safran & Cole, PC

Several years ago  a law was passed (28 USC 137) that established the Patent Cases Pilot Program to enhance the expertise in patent cases among district court judges. The reason for this was that less than one percent of all federal district court cases are patent cases  and a district court judge  typically has a patent case proceed through trial only once every seven years. As a result  the rate of reversal was unacceptably high and Congress believed that judges who regularly focus on patent cases can be expected to make better decisions. So far thirteen district courts  participate in the program. Procedurally, if a judge opts-in to the program and a patent case is assigned to that judge, the judge keeps the case. If a case is assigned to a judge who has not opted-in  to hear patent cases, that judge has the choice of keeping the case or referring it to the group of judges who have opted-in to the program, and most of the thirteen district courts have adopted rules concerning a judge’s ability to keep or refer a patent case.  The program is still in a relatively early stage and it remains to be seen how  having patent cases heard by judges who are likely to have more familiarity with  such cases will improve matters to the point where there are fewer reversals of decisions rendered in patent cases.