up settling. The nature of the judge’s experience is also somewhat unaccounted for. A judge could have experience in infringement analysis but not in validity determinations or in holding Markman hearings. The Federal Judicial Center contends, for instance, that while Markman hearings are only held in 4% of all patent cases, over 60% of all total Markman hearings occur before pilot judges. In addition to the pilot judge variable, I included an additional measure of patent experience, measured by the number of patent cases filed before that judge in the last five years. As alternative measures of experience,” I also used 1) claim construction experience in the past “trial five years; 2) patent experience in the past five years; and 3) the number of patent cases filed before that particular judge in the year prior to the date of the decision in question. Because all of these variables present similar patterns, for ease of analysis, I use only the first measure in the regressions presented here. I alternatively also measured the number of years the judge served on the bench in general since their initial presidential appointment. In addition, I made a variable on whether or not the judge previously sat by designation at the Federal Circuit under the reasoning that judges who previously sat by designation are less likely to be reversed on appeal. In all, 28% of the judges in the dataset and 18% of the judges who have cases later heard on appeal previously served as visitors on the Federal Circuit. Other Independent Variables I collected information about the patent, including the patent number, whether there were multiple patents and if so how many, how many claims each patent had and how many claims were asserted. I also noted both the USPTO’s international patent class as well as the technological category of the relevant field. Scholars have found that the CAFC is less likely to affirm claim constructions on software. For ease of analysis in the analysis I present here, I characterized cases according to one of the six categories: 1) chemical; 2) computer and communications; 3) drug and medical; 4) electronics and electrical; 5) mechanical; and 6) other (including design patents). As an alternative measure, similar to Kesan and Ball, I used the National Bureau of Economic Research (“NBER”) categories to represent the category in issue. In addition to technology category, it is also important to assess complexity. It may be the case that judges in certain districts hear cases having more complex technology than in other districts, and as such,
up settling. The nature of the judge’s experience is also somewhat unaccounted for. A judge could have experience in infringement analysis but not in validity determinations or in holding Markman hearings. The Federal Judicial Center contends, for instance, that while Markman hearings are only held in 4% of all patent cases, over 60% of all total Markman hearings occur before pilot judges. In addition to the pilot judge variable, I included an additional measure of patent experience, measured by the number of patent cases filed before that judge in the last five years. As alternative measures of “trial experience,” I also used 1) claim construction experience in the past five years; 2) patent experience in the past five years; and 3) the number of patent cases filed before that particular judge in the year prior to the date of the decision in question. Because all of these variables present similar patterns, for ease of analysis, I use only the first measure in the regressions presented here. I alternatively also measured the number of years the judge served on the bench in general since their initial presidential appointment. In addition, I made a variable on whether or not the judge previously sat by designation at the Federal Circuit under the reasoning that judges who previously sat by designation are less likely to be reversed on appeal. In all, 28% of the judges in the dataset and 18% of the judges who have cases later heard on appeal previously served as visitors on the Federal Circuit. Other Independent Variables I collected information about the patent, including the patent number, whether there were multiple patents and if so how many, how many claims each patent had and how many claims were asserted. I also noted both the USPTO’s international patent class as well as the technological category of the relevant field. Scholars have found that the CAFC is less likely to affirm claim constructions on software. For ease of analysis in the analysis I present here, I characterized cases according to one of the six categories: 1) chemical; 2) computer and communications; 3) drug and medical; 4) electronics and electrical; 5) mechanical; and 6) other (including design patents). As an alternative measure, similar to Kesan and Ball, I used the National Bureau of Economic Research (“NBER”) categories to represent the category in issue. In addition to technology category, it is also important to assess complexity. It may be the case that judges in certain districts hear cases having more complex technology than in other districts, and as such,