National patent judges pilot program ends

A decade-old nationwide pilot program designed to steer patent litigation to judges who volunteered to take them quietly ended last month, but the Central District of California is not giving up on it.

Chief Judge Philip S. Gutierrez signed a general order shortly before the national pilot program expired July 4 declaring that judges in the Los Angeles based court have decided to establish their own permanent patent program following similar rules.

The program was more popular in metropolitan districts with a lot of judges, especially in California, but was not often used in other venues, where judges just kept their patent cases instead of transferring them to pilot judges.

Attorneys and judges say they liked the program, which allowed judges who disliked the complexities of patent litigation to refer them to judges who wanted the cases.

"The pilot program was a nice compromise between the benefits of generalization and the fact that specialization isn't a bad thing either," said retired U.S. District Judge Andrew J. Guilford, who was a member of the patent pilot program and now works at Judicate West.

Citing the many technology and medical device companies often involved in patent disputes in Los Angeles and Orange County, Guilford said the program "is a way for the court to provide services to the community."

But the program, established in 2011, never achieved nationwide acceptance for a variety of reasons.

The program was the brainchild of U.S. Rep. Darrell Issa, R-Vista, and it first included funding for research clerks to assist judges who agreed to hear more patent cases.

The money for the clerks was stripped out of the final bill, leaving its chief advantage that judges in the program gained more experience because they had more patent cases to handle.

"It's important for judges to develop expertise," Guilford said in a phone interview Thursday.

All but the Eastern District court in California continue to be popular patent venues because defendant companies are often located near the Bay Area, Los Angeles, Orange County and San Diego.

Some popular patent venues were never part of the program, such as the District of Delaware, and others became in-demand destinations long after it was established by Congress.

The Western District of Texas also wasn't in the program and was not a magnet for patent infringement complaints until U.S. District Judge Alan D. Albright, a former patent litigator, became a judge in Waco and actively sought such cases.

Albright's district is now the most popular patent venue in the United States.

The Southern District of Florida, part of the original program, dropped it after a few years.

And according to Amy Semet, an associate professor at the University of Buffalo who wrote a paper on how judges in the program fared on appeal, judges in many districts just held onto their cases instead of transferring them to a program judge.

She said a few districts, including the Southern District of California, funneled most patent cases to a small number of judges in the program.

The same was true in the Northern District of Texas, where all patent cases were handled by judges in Dallas, according to Michael C. Smith, a partner at Scheef & Stone LLP in Marshall, Texas. Smith said one benefit of the pilot program was to spread out patent cases. Plaintiffs' attorneys, he said, are unlikely to file complaints in large districts where they might end up before a judge with little interest or expertise in that area of law.

"Plaintiffs can't file in [most] urban areas," Smith said. "You don't know what judge you're going to get."

This may partially explain why patent cases continue to be filed in a few jurisdictions: Delaware, with a small bench; the Western District of Texas, where all cases are heard by Albright; and the Eastern District of Texas, which has a small bench.

Semet, in her study, concluded judges in the pilot program did no better when their cases were appealed to the U.S. Court of Appeals for the Federal Circuit.

"Overall, the empirical analysis presented here indicates that, thus far, the pilot program has not resulted in pilot judges being reversed less often on appeal after accounting for other factors," she wrote in a 2019 paper for the Boston College Law Review.

The Federal Judicial Center is due to complete a final report on the pilot program later this year, and several attorneys and judges hope Congress will consider reviving it after those conclusions are completed.

Fabio E. Marino, a partner with Polsinelli PC, said the Central District's decision to continue its own program could face a legal challenge from the losing party in a patent case.

But he said the Federal Circuit usually defers to district courts. "It would be pretty bulletproof from appellate review," Marino said.