13 February 2007

Patents: US House of Representatives votes for Specialist Judges Pilot Scheme

According to IP Search 360 the lower house of the US federal legislature has approved a bill which would appear to provide a pilot scheme for the allocation of patent cases in the federal District Courts to specialist patent judges (HR 34).

The USA is divided into a number of districts each of which covers a state or part of a state which hears cases that fall within the federal as opposed to the state jurisdiction. The judges of those courts are known as "district judges" but their jurisdiction and prestige are closer to the jurisdiction and prestige of a High Court judge in England. Appeal lies to Circuit or regional appeal courts whose judges are known as "circuit judges" even though they are comparable to Lord Justices of our Court of Appeal.

Many patent cases are already heard by the US Court of Federal Claims (a court with jurisdiction over claims against the federal government which includes the US Patent and Trademark Office) and appeal lies to a special appeal court known as US Court of Appeals for the Federal Circuit. To that extent there is already a specialist, federal patent judiciary in the USA at first instance.

The Court of Federal Claims would not hear infringement actions which at present could come before any judge. The inconvenience of a case involving complex technical issues and the construction of a specification coming before a judge whose experience has been in a completely different area of practice is obvious, especially if a jury is empanelled. The draft legislation appears to create a court of specialist judges not unlike our assigned judges who would hear claims between patentees and possibly other IPR owners and third parties. In other words, they will be just like our assigned judges. It will be interesting to see how it works in practice.

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