Kopf is patently incompetent

Photo Credit: Michael Neubert's photostream per Creative Commons license.

Photo Credit: Michael Neubert’s photostream per Creative Commons license.

Patents are a major component of the lifeblood of our economy.  Yet, as a generalist judge with no training in science or engineering and very little experience with the intricacies of patent law, I am entrusted with handling patent litigation. Why does that make sense?

If I screw up, the parties may appeal to the Federal Circuit. The Article III judges on the Federal Circuit often have backgrounds in engineering and science.  For example, my friend, Alan Lourie, holds a PhD in chemistry.  Others, like Chief Judge Randall Radar, who lack scientific or engineering educations, have nevertheless devoted extensive portions of their professional careers to the study of patent law.  If specialized experience with patent law is necessary for the Federal Circuit–indeed, if a specialist Circuit court is desirable at all (and it is)–one must seriously consider why a generalist trial judge like myself, who has handled maybe 10 patent cases over the course of a career, ought to have the authority to adjudicate these types of cases.

Don’t get me wrong. Despite the title of this post, I can learn what I need in order to do a creditable job when I handle a patent case. But truth be told, it requires an enormous amount of effort that tends to significantly depress my ability to get a lot of other work done. Moreover, the chance of error–because each patent case requires relearning a highly specialized area of the law, not to mention the daunting scientific or engineering questions inherent in these cases –rises exponentially when generalist judges handle these types of case.  Indeed, in one fairly recent study nearly 35% of decisions on claim construction issues resulted in reversal.  See Student Note, Daniel Gopenko, Reconsidering the Standard of Review in Patent Claim Construction,  40 AIPLA Q.J. 315, 324 (2012) (footnote and citation omitted).

I suppose it’s a pipe dream, but it sure would be nice if patent cases were tried by more knowledgeable judges. There are a variety of ways that this could be accomplished while preserving the core protections of Article III and the right to trial by jury.  But for this very generalist judge (whose experience in the practice of law tended toward defending “dog at large” cases), the parties (and patent law more generally) would be better off with someone who knew more about what he was doing when he put on the black robe.

What do you think?


20 responses

  1. Geez. I feel like my mother died. I thought Federal Judges were experts on everything!

    Maybe a suggestion would be to have the President make certain that when he appoints to a District that one of the Judges has this expertise. I’m very leery of specialized courts. They tend to entrench themselves into an area. Dean Nasser

  2. Also very leery of specialized courts myself. As an example, look at what has happened with board of immigration appeals that took the cases out of the District Courts and now only allow appeals directly to the Circuit. Does anyone think that has been a positive step? With good lawyering, I think that District Courts are better equipped to handle to wide range of appeals than specialized Courts that seem to suffer from fatigue or apathy of the issues. But, it’s an interesting debate. The local Chief Judge of the District Court I do a lot of work has also complained that she feels lost in patent cases…

  3. Since I don’t know any better — what is (are) the problem(s) with hiring circuit special masters? See, e.g., Creel, T., McGahren, T., Use of Special Masters in Patent Litigation: A Special Master’s Perspective, 26 AIPLA Q.J. 109, 110 (1998).

    It would be like the role of a Magistrate Judge. What if there were several specialists that “ride” a circuit? Then you let a specialist for each topic grind through the material and present it in a concrete and concise form for a trial judge to do what she or he does best: evidence and trials. (I assume that’s what they do best… although perhaps more like negotiating a settlement).

    That’s what law firms do.

    Cons: High cost, but probably less than the cost of an additional Article III (or perhaps Magistrate) judge. Less accountability on the part of the special master (and the judge still has to make the final call). District judge (and her/his clerk(s)) still have to understand the material well enough–which might take a very long time.

  4. I think you are making a good point. I don’t know how many district court judges either want to or have the ability to learn the technical details for a patent case. In a case I had years ago (not patent, but involving statistics), it was clear that the judge had no comprehension of statistics. The experts
    on the other side were able to impress the judge with their detailed statistical analysis, which she had
    no ability to understand. In fact, I often hear lawyers comment that there is a reason they went to law school – they could not understand science or math. I was a math major, so I appreciate a case involving numbers. However, I often don’t understand many of the technical details, either. It seems that the problem of very technical cases would be a reason for a special court or special master. Elaine Mittleman

  5. I suppose it’s a pipe dream, but it sure would be nice if patent cases were tried by more knowledgeable judges.

    My pipe dream is that patent law (among other areas) be severely simplified so that generalist judges could keep up. Here’s an example to illustrate: A sues B and says to Judge Kopf, “Judge, B infringed my patent. Please nail his ass.” The case is presented, and one of two situations become clear: B or his lawyers are able to differentiate his thingie (for you lawyers, that’s an engineering technical term) from A’s thingie in terms that Judge Kopf can understand: no infringement. Alternatively, neither B nor his lawyers can make the distinction. If these worthies cannot articulate their distinctions sufficiently to make Judge Kopf to see them, then no distinction exists, and per A’s pleading, our Judge nails B’s ass. Of course the judge still would have to be more self confident, and less sanguine, than the statistically challenged judge above, but egos are something we’re never going to get out of folks.

    But my pipe dream is as vaporous as our host’s so here’s my suggestion. We have bankruptcy judges that, more or less, focus on bankruptcy, and they operate under the supervision of a district judge. Why not do the same for patent law?

    Eric Hines

  6. On the other hand, the supposed experts on the Federal Circuit are constantly reversed by the Supreme Court on fundamental questions of patent law, and my understanding is that a fair number of patent practitioners see the concentration of all patent questions into one appellate court as a major mistake. From them, I get the impression that the FC has developed very entrenched factions on various patent law questions, without the opportunity for a wide airing of viewpoints you get when 12 different courts of appeals can weigh in on an issue. Perhaps relatedly, the FC seems unwilling to do anything to stop the takeover of the patent system by extortionate patent trolls — listen to the This American Life episode about the absurdity of vaguely worded, overbroad software patents, which are unintelligible to actual IT professionals and computer scientists, yet are used to claim rights over vast swaths of internet technology (and in turn to demand settlements from those who actually employ such technology).

  7. Jay, I confess that my concern about generalist trial judges handling patent cases may simply reflect my own failings. As for the Supreme Court reversing the Federal Circuit, if that were the litmus test we would no longer have the Ninth Circuit or, more recently, the Sixth Circuit–I just kidding. I get your point.

    All the best.


  8. Special masters are useful and I have served as one long ago in a non-patent case, but for core Article III functions a special master would lack the constitutional power to act. All the best.


  9. Sorry about your mother. One of the great things about being a senior judge is no longer pretending that you know something. All the best.


  10. Thanks Daniel. I am a big fan of generalist judges and generalist courts too. But the complexity of patent law and the significance of it to our national economy strikes me as something for which an exception may be in order. All the best.


  11. Rich, I believe the one attempt at this (I think) is the Court of International Trade. I believe that their appeals are heard by the Federal Circuit. Probably someone has studied the effectiveness of this, but I confess that it hasn’t been me.

    I am conflicted on this. New York was at various points considering going to a “central panel” of Administrative Law Judges — meaning that the ALJ’s would be pulled out of agencies and given quasi-judicial independence. California actually has such a system. In fact, the biggest trial I ever litigated was before a California central panel ALJ. It was a fight between the counties and the state about allocation of property tax revenue from what was called the “supplemental roll.” Normally the AG would have represented the state, but because they handled some matters for the county, they declared a conflict and hired our firm.

    So they hired our firm, because of a particular partner who had expertise in government contracts. Things got really, really interesting when the partner jumped to another firm about 2 weeks before the trial. The higher ups in the state government wanted to the case to go with him, but the people who were actually working with me screamed “No!” it’s the kid who actually has done all the work, if he isn’t in on it we’re dead. So at the advanced age of 26, here I was in what amounted to a bench trial with a billion dollars at stake (back when a billion dollars really was a lot). We won, at every level.

    OK, I have to admit that in that circumstance I was happy for a generalist judge because judges with a particular background develop their own vocabulary and ways of thinking about these things, and a big part of winning these technical cases in front of a generalist judge (or a jury) is being able to get the dispute laid out in a way that makes sense to an outsider.

    However, I opposed the bill in New York to create a central panel of administrative law judges. At least in the areas that New York had administrative law judges, I thought it made sense to keep them in the agencies. The ALJ’s who handled environmental cases probably should be handling a hospital licensing dispute the next day.

    An overlooked reality of federal adjudication is that size of the federal bench is dwarfed by the number of ALJ’s, which is in turn is dwarfed by the number of AJ’s (Administrative Judges — agencies don’t like being bound to the rules of formal adjudication under the APA if they can avoid it). So as a practical matter, there is a lot of specialized federal adjudication — it just takes place in agencies.

    I guess I think the current division is about right. However, I have to confess that there’s a certain oddity in having this particular sort of case go on appeal to the Federal Circuit, rather than the geographical circuit. Then you get those interesting questions that only interest federal courts nerds (like me) about whether a particular issue is one where the Federal Circuit “defers” to the home circuit’s rule, or follows its own precedents. This comes up a lot in personal jurisdiction issues and the like. I find this really interesting, and there might be two or three other people who do too — so I’m not alone. And that’s a good thing.

    Your faithful correspondent, Pat.

  12. Jay

    After I posted I realized that we could both be right, as it were. For starters, my impression is that patent cases are already pretty concentrated in a few districts (ED Tex, ND Cal), for a variety of reasons; to the extent that continues to happen organically, I suppose it makes it even more rare for the average judge elsewhere to get a patent case (although when that judge does get one, he’s even more unfamiliar with the law, I guess). I agree with other commenters that it might make sense to appoint special masters more often in complex patent cases where the judge has to engage in difficult issues of claim construction.
    At the appellate level, though, I agree with Daniel that the BIA is a good example of the problem of specialist courts — they tend to attract people who are already too invested in some particular view of the subject matter, have an axe to grind, etc. I suspect this plays out in more complex ways on the Federal Circuit, but my impression is that it remains an issue. To me there’s sort of a slippery slope aspect, too — is patent law really that much more complicated than habeas law, or immigration law, or tax or bankruptcy law? What, really, is the justification for a specialized court in one area but not the others (of course, you have the Tax Court, which for whatever reason works in the opposite direction of the Federal Circuit — specialized at the trial level, with an appeal lying to the regional circuit).

  13. Dear Jay,

    First, I agree that there are spots (like NDCA) where the judges get a steady diet of patent cases. For those judges, I suspect that patent cases are no more troublesome than other complex bits of litigation. Its for the vast majority of other federal trial courts where I see the problem.

    Second, as for special masters, I wonder how practical that is for most patent cases. I have yet to have any party in a patent case propose a special master, so I would be interested in knowing from you what precisely the special master might do that would make things easier for the trial judge in most patent cases. For example, are you suggesting that the Master would conduct the Markman hearing on claim construction? Moreover, If a case goes to trial, I presume you agree that the district judge must try the case to a jury. So, you still have that problem even if you have a special master. So, if there is some general agreement that in most patent cases it is very helpful to have the expertise of a specialist then I would rather have a full blown Article III specialist than reply upon a hybrid system of generalist Article III judges and specialist special masters.

    Again, I cannot stress enough that my musings on this subject may only reflect my own insecurities and overall lack of experience and knowledge. Or, perhaps, an example of “effort aversion” as Judge Posner might say!

    All the best.


  14. Pat,

    Very interesting. I think you hit the nail on the head when you say “a big part of winning these technical cases in front of a generalist judge (or a jury) is being able to get the dispute laid out in a way that makes sense to an outsider.” You are exactly correct when you speak of “winning” from the perspective of a lawyer representing a litigant.

    From the perspective of a generalist judge, a big part of being a good judge is knowing enough that you don’t make a lot of errors that force the parties to spend more money. With a 35% reversal rate at the Federal Circuit on claim construction issues (the pivotal decision in most patent cases–a question law and therefore resolvable only by the judge), there is an empirically based reason to believe that generalist judges are not up to the task even when the lawyers “educate” the judge. Even if the Federal Circuit is wrong to reverse that many cases, a system with an aggressive specialist appellate tribunal and a “rookie” generalist trial tribunal strikes me as a very screwy set up. To me, the reversal stats illustrate that mismatch in stark relief.

    All the best.


  15. Judge,

    Sorry, I thought I addressed my comment to you; not sure how my own name got in the first line. Considering it further, you’re probably right that special masters would be of limited use as long as the Federal Circuit sticks by its rule that claim construction is a pure matter of law reviewed de novo. I understand, though, that the FC is currently considering a case en banc on that question (whether it should be a question of fact, or some kind of hybrid). If CC did become a fact question, perhaps a SM could be more useful.

  16. Jay,

    Good point about the law/fact distinction in claim construction matters, and the possibility that the FC may change the standard of review. Even if the FC changes the standard of review to treat claim construction issues more akin to review of factual questions (which I think is unlikely–some hybrid is more likely), it seems to me that the same (or at least a similar) problem will exist. That is, my guess is that you will still have specialist appellate judges reviewing claim construction decisions (whether viewed as a factual issue, a legal issue or some hybrid) with a skepticism that is atypical of appellate review of most other cases. I suppose we shall see. If my prediction is accurate, then I continue to think that generalist judges will always be viewed by specialist appellate judges with a certain intellectual disdain. Thus, to make it a fair fight, a specialist Article III district judge would at level the playing field and, far more important, perhaps provide more predictability and finality in patent litigation.

    All the best.


  17. Judge, I think your concerns are well-founded, but outweighed by the benefits of you and your kind (the dreaded generalist, in this case) presiding. There are a few concerns. First, but not foremost, the patent system is groans under the weight of its own importance. This weekend, Judge Posner and Gary Becker (my absolute favorite living economist) made strong cases for sweeping reforms of our patent system on their blog (http://www.becker-posner-blog.com). Becker cut straight to the point: “The patent system as practiced in the United States is too broad, too loose, and too expensive.”

    I don’t think most with the specialized backgrounds feel that way. Just like most lawyers usually assume that Bar regulation establishes at least a minimum level of quality for the public (studies that do not come from the ABA have never shown this, at least to my knowledge), most science or engineering specialists tend to inflate the efficacy of a system that only they can participate in as well. But the cost of the intellectual property regime in this country, particularly in patents, is pushing it over an edge.

    Second, there is another benefit that comes from your different perspective. I once listened to a patent lawyer explain a really complicated reform to patent law that would allegedly solve some kind of problem with the exhaustion doctrine. I don’t remember the details. But I asked, “What does your reform do through statute that the parties can’t do already through contract?” He just looked at me. He thought about it. And then he thought again. He shrugged, “Nothing.”

    (By the way, whence common law and the efficacy of contract? Maybe that’s a subject for another day, but last time I checked, common law handles the infinite diversity and aberrations of our human lives much better than the civil law…. but I digress……)

    Finally, let me just suggest that if there really was a profound problem in this regard with the patent system, it probably would have been changed by now. My review of patent law has never suggested there is a big problem here. Ultimately, you, like any fact-finder, have to take a look at what you are given and make heads or tails of it. I’m only gently reminded of the great Thomas Sowell and his final line in the book Knowledge and Decisions: “Freedom is not simply the right of intellectuals to circulate their merchandise. It is, above all, the right of ordinary people to find elbow room for themselves and a refuge from the rampaging presumptions of their ‘betters.'”

  18. Dear Demo,

    How beautifully written! How thoughtful! How persuasive! Truly, you ought to start writing this blog, and I could go back to being a silent crank. Indeed, Demo, given your full name, you can be my “logographer” any time.

    Your point about contracts struck a chord with me. I can absolutely never tell when I am supposed to “construe” a contract (that’s a law issue, I think) and when a jury is supposed to “interpret” a contract (that’s a fact issue, I think). (Or is it the other way around?) Even then, I can’t tell what the difference (really) is between “construction” and “interpretation.” I wouldn’t suggest that we generalists judges get out of the contract biz because that would truly mark me as a slacker. So, maybe you are right.

    All the best.


  19. For my experience as a career law clerk in federal court, and someone who previously litigated patent cases (without a specialized degree), I wholeheartedly agree that patent cases are not ideal for generalist judges (or often generalist juries). The Federal Circuit’s rate of sua sponte reversals of claim construction indicates that the district courts are not specialized enough to get claim construction orders “correct” often enough. This leads to parties having an additional incentive to appeal patent verdicts and results in inefficinecy and expense.

    Patent cases, especially complex patents involving numerous claims that address the most sophisticated areas of science, should not be dumped on the generalist judge that has no background in patent law, nor a passion for the area. The Southern District of California is currently experimenting with the Patent Pilot Program. It is to be determined whether a judge’s desire and affection to hear patent cases remedies the inherent issues with generalist judges trying these cases. I, however, still believe that patent cases belong with specialized patent judges that have at least a lengthy histroy practicing in the area, if not a science background too.

    I would go so far as arguing that juries of lay people should only be tasked with damages determinations in patent cases. I do not believe juries should be expected to understand invalidity and infringement in most patent matters.

  20. Thank you so much for your thoughtful comment. I appreciate your insights both as a career law clerk and also as a patent litigator. With that experience, you are uniquely situated to comment knowledgeably.

    All the best.


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