Further analysis would also be needed to assess whether the program had the intended effect of reducing forum shopping. The results thus far are not promising. Some noticeable districts, such as the Eastern District of Virginia and the Western District of Wisconsin are popularly known as “rocket dockets” due to their speed and efficiency in resolving all case, not just patent ones. Litigants may still have an incentive to file in these districts. Moreover, some districts, such as the Western District of Wisconsin and the Eastern District of Texas have a reputation for being pro patentee due to the series of local rules it has adopted. In the E.D.TX, for instance, Judge Ward requires parties to turn over discovery at the onset, sanctioning them if they fail to comply. Moreover both parties are required to come up with a list of agreed upon claim terms, thus narrowing the number of terms in dispute. The pilot program could perhaps fix this by requiring districts subscribing to the program adhere to universal local patent rules. Yet, even should this occur, there may still remain an incentive for judges to forum shop in certain districts either for speed or reputation. Further, some pilot program districts have a greater percentage of their judges participating in the program. Thus, litigants know a priori that in some districts there is nearly a 80% chance of getting a pilot judge whereas in other districts like the Northern District of California, the odds are much less due to the lower percentage of pilot judges per total number of district judges. Added to the fact that nothing in the law actually requires litigants to file or not file in any particular forum, it appear at least on first blush that the pilot program may not have mitigated forum shopping as much as intended. Reform Patent Law Internally If the results here hold up to additional specifications, the fundamental problem may lie in patent law in general. Patent law and its emphasis on interpreting the patent’s claims may be too – – indeterminate for proper resolution as there is little common understanding of claim terms through either definition or through legal standard. Patent office rules may not have kept up with modern times as the PTO requires that claims be drafted within a single sentence, regardless of how many ideas are
Further analysis would also be needed to assess whether the program had the intended effect of reducing forum shopping. The results thus far are not promising. Some noticeable districts, such as the Eastern District of Virginia and the Western District of Wisconsin are popularly known as “rocket dockets” due to their speed and efficiency in resolving all case, not just patent ones. Litigants may still have an incentive to file in these districts. Moreover, some districts, such as the Western District of Wisconsin and the Eastern District of Texas have a reputation for being pro patentee due to the series of local rules it has adopted. In the E.D.TX, for instance, Judge Ward requires parties to turn over discovery at the onset, sanctioning them if they fail to comply. Moreover both parties are required to come up with a list of agreed upon claim terms, thus narrowing the number of terms in dispute. The pilot program could perhaps fix this by requiring districts subscribing to the program adhere to universal local patent rules. Yet, even should this occur, there may still remain an incentive for judges to forum shop in certain districts either for speed or reputation. Further, some pilot program districts have a greater percentage of their judges participating in the program. Thus, litigants know a priori that in some districts there is nearly a 80% chance of getting a pilot judge whereas in other districts like the Northern District of California, the odds are much less due to the lower percentage of pilot judges per total number of district judges. Added to the fact that nothing in the law actually requires litigants to file or not file in any particular forum, it appear at least on first blush that the pilot program may not have mitigated forum shopping as much as intended. Reform Patent Law Internally If the results here hold up to additional specifications, the fundamental problem may lie in patent law in general. Patent law – and its emphasis on interpreting the patent’s claims – may be too indeterminate for proper resolution as there is little common understanding of claim terms through either definition or through legal standard. Patent office rules may not have kept up with modern times as the PTO requires that claims be drafted within a single sentence, regardless of how many ideas are
semet_amy_patent.docx