Do We Need Specialized Trial Courts for Patent Cases?

Armchair Justice says: NO!

At the close of the latest session of Congress, the House of Representatives passed 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." The bill would, among other things, allow district court judges to volunteer for designation as patent judges, whereby all patent cases in that district would be funneled to the patent judges. The bill is the latest effort to attack the high reversal rate at the Federal Circuit, which stands at an abnormally high rate of about 30-35%. Congress hopes that increased expertise at the trial level will produce better results more likely to be upheld by the Federal Circuit.

Meanwhile, the U.S. Supreme Court is attacking the Federal Circuit reversal problem from the other direction. According to a recent article from the National Law Journal:

"From 1990 to 2001, the court granted certiorari eight times, heard eight cases and affirmed the Federal Circuit's decisions 50 percent of the time. But from 2002 to now, the court granted certiorari nine times, heard seven cases -- and did not affirm in any of the cases."

So, as Congress is trying to create better results at the district court level, the Supreme Court is reversing the results at the Federal Circuit level. So what's going on at the Federal Circuit?

The Federal Circuit was created in 1982, and is unique in that it is the only federal court of appeals based entirely on jurisdiction, rather than geography. It sits in Washington, D.C., but its appeals are based on its exclusive appellate jurisdiction over a handful of federal cases, most notably patent cases. The goal in creating a single Circuit Court to hear patent appeals was to create consistency within patent law and avoid forum shopping. On the latter point, there's still a great deal of forum shopping in patent law (the Northern District of California, Western District of Wisconsin, Eastern District of Texas, District of Delaware, and District of Massachusetts are currently the most popular), so the Federal Circuit hasn't done much there.

In terms of consistency, the Federal Circuit hasn't done much better. While there are obviously no circuit splits in patent law, there are plenty of intra-circuit splits among the twelve judges on the Federal Circuit. Most experienced patent litigators will tell you that your result on appeal depends on the panel you draw. Even on clear questions of law for which there is established precedent, the judges vary greatly in the ways in which they apply (or ignore) the commands of the Supreme Court and their own precedential decisions.

Will specialized trial courts change this? I'm doubtful. There is certainly an expertise problem in many (though not all) District Courts when it comes to patent cases, but increased expertise will do nothing to address the overall willfulness of the Federal Circuit. Rather than increasing judicial specialization in patent law, I believe it's time to acknowledge that the Federal Circuit experiment has failed and return to regional jurisdiction over patent appeals.

There are plenty of benefits of having competing circuits deal with federal appeals. Giving the Federal Circuit more authority to draw from (and perhaps ignore) would assist them in reaching their own conclusions. It would also cast into sharper relief their decisions to ignore authority, and perhaps force them to either justify it doctrinally or stop doing it. In addition, I just don't think that patent law is as strange and mysterious as everyone thinks it is. Plenty of federal law is complex. The fact that patent law's complexity is derived partially from its technological subject matter doesn't mean it should have its own circuit.