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?


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