Addressing the Elephant: The Potential Effects of the Patent Cases Pilot Program and Leahy-Smith America Invents Act

INTRODUCTIONRecently, I have seen several big-budget television commercials invoke patents while marketing their goods. The general public's recognition of the importance of patents to innovation and our economy is perhaps at an all-time high. Many factors probably drive this increased awareness, including our daily dependence on modern technology and media coverage of high-profile litigations and patent acquisitions.This increased attention has implications as well in the legal world. For those of us embedded within the patent system, we are experiencing a very important shift in the perception and operation of our discipline. For instance, many of the more prominent jurisdictions for patent trials are implementing local rules allowing uniform, fast, and cost-effective discovery and case development. The Patent Cases Pilot Program1 is similarly starting to influence the processes and efficiency of patent litigation with a heightened expertise in our already-marvelously-competent trial judges. of course, the elephant in the room regarding changes to patent law and litigation is the enactment of the Leahy-Smith America Invents Act2 (AIA). While the full impact of these changes-mostly procedural in nature-remain to be seen, a statement of our expectations for these changes at this point may well help assess the degree of change achieved by this legislation. Therefore, at this point of embarkation for the AIA and the advent for the Patent Pilot Program, I will briefly look at the potential for change in both district court patent litigation and Patent Office review of issued patents.THE PATENT PILOT PROGRAMThe Patent Pilot Program ("Program"), about a year-and-half old now, has several intriguing levers for patent litigation development. Congress created this ten-year pilot project with the goal of increasing U.S. district court judge expertise and efficiency in adjudicating patent cases. In operation, the Program funnels patent cases to interested judges in a select number of district courts. When a patent case is filed in a participating district court, the case is initially assigned randomly to a judge in the district, independent of the list of judges who have volunteered to hear patent cases. If the case falls to a judge who is not participating in the program, that judge may decline to accept the case. The declining decision triggers a random reassignment to one of the volunteers to hear patent cases.3 Each of the pilot districts has its own case assignment rules. Typically, non-participating judges have thirty days to decline a randomly assigned patent case. Some districts give only seven days to elect reassignment.A district qualified for the Program based on the court's experience or interest in patent cases. Eligibility was predicated on the district's ranking as one of the top fifteen districts with the largest number of patent and plant variety protection cases filed in 2010, or on the district's adoption of (or intent to adopt) local patent rules. For context, the year 2010 saw the filing of just over three thousand patent cases.4 Ten district courts accounted for about fifty-four percent of these cases.5The Program intentionally included both larger and smaller district courts from at least three different judicial circuits. Congress instructed the Director of the Administrative Office of the United States Courts to make selections from two cohorts after establishing a pool of interested, eligible district courts. The first statutory category demanded at least three district courts with a minimum of ten authorized district judgeships and at least three interested judges.6 The statute also demanded at least three district courts with fewer than ten authorized district judgeships and at least two interested judges.7Fourteen district courts were selected to participate in the Program. These include districts with well-known patent activity such as the Eastern District of Texas and three of the California districts. …