Does familiarity breed contempt among judges deciding patent cases?

• Author: Lemley, Mark A.

INTRODUCTION I. SPECIALIZED PATENT COURTS AND FORUM SHOPPING II. METHODOLOGY III. RESULTS A. Descriptive Statistics 1. Case outcomes 2. Judges and districts B. Primary Results 1. More experienced judges are more likely to vote against patentees 2. District effects 3. Infringement, not validity, explains the difference 4. Technology-specific effects 5. The effect is driven by experience, not individual judges IV. Implications A. Familiarity Breeds Contempt--Sometimes B. The Promise and Peril of Judicial Specialization C. Future Work CONCLUSION APPENDIX A INTRODUCTION

Judges notoriously dislike patent cases, which they view as arcane, complex, and surprisingly hard fought. Proponents of specialized trial courts for patent cases argue that patent litigation is inherently complex and involves technical factual background that is especially difficult and specialized. (1) They would like to limit patent cases to judges with technical expertise, or at least to judges who have demonstrated a willingness to engage with patent law. (2) The creation of the Federal Circuit was in part a response to such calls for specialization, though it was also designed to make the substantive law more patent friendly. (3)

Proponents of judicial specialization attribute the Federal Circuit's lamented reversal rate to judicial inexperience at the trial level, though much ink has been spilled on other reasons why the reversal rate might be high. (4) Among other benefits, proponents of specialization expect it to produce both coherence in decisionmaking and a higher proportion of high-quality or "correct" decisions. (5) An experienced trial court, it is argued, could dispose of cases more accurately, more efficiently, and without forum shopping. Congress has responded by creating the Patent Pilot Program (PPP), (6) intended to channel many patent cases in fourteen test districts to judges who opt to hear them. The PPP is not itself a specialized court, but it encourages specialization within a district, concentrating experience with patent cases in the hands of a few judges.

Others oppose specialized trial courts. Generalist courts, they argue, may be better able to connect specialty law with other doctrines and with broader societal interests. (7) And specialized courts may be susceptible to forum shopping, bias, and even capture, both because their importance depends on the continuing robustness of patent protection and because specialized judges are likely to spend time with lawyers who share that specialization. (8) This concern is frequently voiced about the Federal Circuit and the de facto specialized docket in the Eastern District of Texas. (9)

So far, this literature has been based on speculation. It has been unable to tell us the answer to the question parties most care about when they take a case to a trial court: does judicial experience with patent cases affect how the judge rules in the case? The rich literature on Federal Circuit reversal rates cannot tell us. Reversal rates for experienced patent judges are not reliably different from those with less experience; (10) in any case, reversal rates may be driven by any number of factors that are hard to separate from district judge experience. The answer may affect both statutory proposals for district court specialization and the focus of the courts and Congress on forum shopping.

In this Article, we offer the first comprehensive look at how a district judge's experience with patent cases affects that judge's decisionmaking. We look both at district outcomes and at outcomes by judge. Using both logistic regression and fixed effect analyses, we then relate outcomes to each judge's experience level, measured by the number of patent cases that judge decided over the observed time period.

We find a strong, statistically significant relationship between a judge's experience and case outcome: more experienced judges are less likely to rule for the patentee. Notably, this is true only of findings of infringement; judicial experience has no relationship to the likelihood a judge will find a patent invalid. The relationship between experience and outcome holds across all judges and is not driven by particular judges. We also find that patentees are more likely to win biotechnology and pharmaceutical patent cases and less likely to win computer cases.

Our findings suggest that some sort of learning effect is going on among district judges across the country and that patentees benefit from litigating before inexperienced judges. That learning effect is quite steep; judges who have heard even a few patent cases quickly become less likely to rule for the patentee. We cannot tell whether the effect results from substantive shifts in attitude--judges growing frustrated with repeated suits by patent trolls or overclaiming by patentees, for example--or represent a general increase in confidence in claim construction or assertiveness on the bench that comes with greater experience. It could even result from greater familiarity with the procedure in patent cases.

Depending on the reason for this effect, adoption of a specialized patent trial court, or other methods of increasing trial judges' experience with patent cases, might help accused infringers, not patentees. We are hesitant to conclude that the substantive effect of patent experience is either good or bad; that may depend both on one's views of whether we have too much patent protection and on what is causing the effect. But it is important to understand that judicial patent specialization is not substantively neutral; it is bound up with the outcome of the cases.

In Part I, we discuss the issues most relevant to debates over judicial specialization and forum shopping in patent law. In Part II, we explain our study methodology. Part III presents our results, focusing on the effect of judicial experience and district-specific results. Part IV offers some preliminary thoughts as to why more experienced judges are less likely to rule for patentees, discusses what our findings might mean for patent policy and patent reform, and suggests some paths for future work.

1. SPECIALIZED PATENT COURTS AND FORUM SHOPPING

   Whether specialized courts are a good idea is a longstanding question, considered at length in the literature. The general expected benefits include greater efficiency in case management and disposition, (11) outcomes of higher "quality" or correctness in complex areas of fact or law, and more stable outcomes in similar cases, leading to coherent case law over time. (12) Proponents argue that the creation of specialized courts would be beneficial for complex areas of law, especially those that are factually complex, because it would both improve the accuracy of outcomes (14) and streamline overloaded generalist dockets by giving time-consuming cases to judges with greater expertise. (15) Some suggest that specialized courts may reduce forum shopping. (16) Unsurprisingly, proposals for specialized patent trial courts are well represented in the academic literature, (17) following the decision to concentrate expertise at the appellate level by creating the specialized Court of Appeals for the Federal Circuit, and have been regularly proposed in Congress. (18) Other countries--notably South Korea, Japan, and the United Kingdom--presently use some manner of specialized courts for patent cases, (19) and the European Union is currently seeking ratification of an agreement on a specialized Unified Patent Court. (20)

   Others raise concerns about specialized courts generally and patent courts specifically. The primary concern is capture of specialized courts by interested groups. (21) Some scholars have more general concerns about the effect of isolating certain types of cases into specific courts. They worry about negative effects on both the specialty area of law and adjudication more generally. (22) In patent law in particular, commentators have worried that a specialized court would ignore precedent from other courts in favor of its own views. (23) This unease is longstanding; in 1951, Samuel Rifkind outlined his concerns that specialization would remove patent from the whole body of law of which it is a part. Rifkind worried this would lead to tunnel vision and the creation of a court with "a jargon of its own, thought-patterns that are unique, internal policies which it subserves and which are different from and sometimes at odds with the policies pursued by the general law." (24) Without the cross-pollination of legal theories from other areas of law, specialized courts could undermine, rather than enhance, the law's overall coherence. (25)

   Moreover, the quality of specialized courts' overall decisions could suffer if their judges do not have sufficient exposure to related areas of law, such as commercial and antitrust law, when deciding patent cases. (26) Relatedly, commentators worry that specialist benches would attract judges who are less qualified overall. (27) And some have suggested reducing specialization by granting jurisdiction in patent appeals to a few districts beyond the Federal Circuit to increase expertise in regulatory and administrative issues and to create intellectual competition and interplay between courts. (28)

   At the same time, commentators sometimes limit such concerns to appellate courts on the theory that it is the appellate bench's job to consider legal development in light of other areas of law and that the trial bench can improve its factfinding work through specialized expertise. (29) On this view, the Federal Circuit may have been the wrong place to introduce specialization; instead, what we need is a specialized trial bench. (30) Indeed, some of the criticisms of the Federal Circuit have focused on its alleged "hyperactivity" in reviewing district court factual determinations. (31) The worry that a specialized court will be too interested in the facts may be a problem for an appellate...