Courting Specialization: An Empirical Study of Claim Construction Comparing Patent Litigation Before Federal District Courts and the International Trade Commission

ABSTRACT The United States International Trade Commission (ITC) has recently become an important adjudicator of patent infringement disputes, and the administrative law judges (ALJs) on the ITC are widely viewed as experts on patent law. This Article empirically examines the performance of the ITC in patent claim construction cases. The Article also compares the performance of the ITC on claim construction with that of federal district courts of general jurisdiction. This study does not find any evidence that the patent-experienced ALJs of the ITC are more accurate at claim construction than district court judges or that the ALJs learn from the Federal Circuit's review of their decisions. When considered in the context of previous studies, the results of this study hint at three possible explanations for the lack of evidence: (1) trial judges (including the ALJs of the ITC) cannot master claim construction, especially without a technical background; (2) the Federal Circuit's claim construction case law is poorly articulated; or (3) claim construction is inherently indeterminate. TABLE OF CONTENTS INTRODUCTION I. PATENT LITIGATION BEFORE THE U.S. INTERNATIONAL TRADE COMMISSION A. Patent Litigation and Claim Construction B. Patent Litigation in the ITC II. STUDY DESIGN AND METHODOLOGY III. RESULTS A. ITC Claim Construction Reversal Rates B. Claim Construction Experience and Reversal Rates C. Claim Construction Modifications by the Commission IV. ANALYSIS AND IMPLICATIONS A. Explanations for the ITC Reversal Rate 1. The Small Number of ITC Appeals 2. Potential Differences in Adjudication of Patent Disputes 3. Potential Differences in Cases that Are Brought in the ITC 4. Potential Differences in the Disputes that Are Appealed B. Repercussions if the ITC's Reversal Rate Is Comparable CONCLUSION APPENDIX A. The District Court Claim Construction Appeals B. The ITC Appellate Decisions C. The ITC Investigation Database INTRODUCTION The bulk of patent cases are litigated in federal district courts of general jurisdiction. Most district court judges are generalists who never hear enough patent cases to become experts in that area of law. (1) District court decisions concerning patent claim construction (2) have a very high reversal rate before the Federal Circuit. (3) Because of district courts' lack of judicial expertise and the high commercial stakes involved in patent litigation, lawyers, judges, and academics have argued for dramatic change to lessen that reversal rate. (4) They have asserted that a different set of trial court judges is needed to hear patent cases. Instead of generalists, some have advocated for specialized patent trial courts. (5) As a result of this growing opinion that specialized patent judges are necessary, Congress is currently debating a proposal for specialized patent trial courts called the Patent Pilot Program. (6) The Patent Pilot Program would segregate quasi-specialized patent trial judges from the general pool of district court judges. (7) District court judges who participate in the Patent Pilot Program would hear all of the patent cases brought in their districts. (8) At first blush there seems to be no downside to the Patent Pilot Program. Presumably the expertise of judges should reduce litigation uncertainty, including uncertainty from the always-contested issue of claim construction. On further reflection, however, that may not be the case. First, existing empirical literature suggests that district court judges with more patent experience are reversed at roughly the same rate as judges with less experience. (9) Second, specialized patent trial courts already exist within the U.S. legal system--at the U.S. International Trade Commission (ITC)--and an empirical comparison between the ITC and general district courts suggests that specialized patent judges would not yield any more certainty than the more generalist district court judges. …