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February 6, 2006

U.S. Patent Court

Rep. Darrell Issa (R-Ca) is mulling a patent trial court for the United States. Britain established its Patent County Court in 1988, and Japan set up its Intellectual Property High Court in April 2005. The European Commission is contemplating a continent-wide patent court system. Should the U.S. follow suit?

Six countries currently have a specialized IP court system: the U.K., Japan, South Korea, Singapore, Thailand, and Turkey.

The idea for a specialized patent trial court for the U.S. was mooted in the early 1980s, when the U.S. Court of Appeals for the Federal Circuit (CAFC) was established. At the time, the consensus was to continue to have a general trials court system with a specialized appeals court.

District courts frequently tackle complex areas of law outside of IP, such as antitrust. But compared to other complex areas of law, patent litigation traffic in the courts is constant and thick. Further, the outcomes of patent cases regularly have a significant economic impact.

A patent trial court would put IP matters completely outside the one-size-fits-all federal court scheme. One concern in doing so is that the judges would become inbred. Another way of looking at that would be to consider that 35% of district court decisions on patents are overturned on appeal. Patent law is intricate. With less than two-thirds of district court decisions on firm legal ground, something needs to be done. As Mark Supko, a partner at Crowell & Moring observed, "There are still significant legal issues in patent cases that can be quite unpredictable." Besides, judges aren't supposed to be creative with legal arguments; that's the role of the attorneys arguing cases, so the "inbred" argument is something of a straw man.

The cost of patent litigation is another consideration. Owing to technical complexity, a patent trial commonly costs a few million before appeal. A U.S. patent court may not cut that cost, but it would very likely cut the cost of further legal action, as chances for overturning a verdict on appeal drop, precisely because patent court trial judges would be much more in sync. That turns the "inbred" argument on its head, putting it in the plus column for a trial patent court.

Another objection voiced to a specialized patent trial court is the difficulty of handling such a broad range of technologies. But district courts have to do that now anyway. Having a more uniform system in place for handling such cases, a unified patent court would be better able to streamline the process of employing the necessary technical advisors, shaving court costs as well as avoiding procedural legal mistakes.

As Mark Supto stated, "It makes good sense for the Federal Circuit to be handling all the patent appeals, as this has resulted in a bit more uniformity in the way patent disputes are handled." Why not put that uniformity at the trial level?!

Posted by Patent Hawk at February 6, 2006 12:04 AM | The Patent System

Comments

It's very interesting to read Japan & Korea have a IP rial system.

Actually, Korea tried to duplicate CAFC.
However, IP litigations are dealt in district court-higher court-supreme court system in Korea.

Only, appeals for the decisions from KIPO goes into special IP court and after that goes to supream court.

Posted by: MK at February 7, 2006 2:54 AM