Judging Patents

Patent litigation is regarded as the “neurosurgery of litigation.” To adjudicate these cases, judges must grasp complex technology underlying the claims at issue, notwithstanding the fact that many judges lack relevant science or technology backgrounds. This problem is compounded by the fact that judges generally lack access to neutral expertise, forcing them to rely upon party-hired experts for tutorials. By contrast, several European patent courts utilize technically qualified judges who work side by side with their legally trained counterparts to decide patent cases. The integration of technical expertise into the judiciary improves the speed of litigation, provides the court with unbiased information, and likely increases the accuracy of the judges’ claim construction.

This Article examines the role of technical expertise in patent litigation and discusses obstacles to U.S. district courts obtaining assistance. It then looks at the use of technically qualified judges in Germany and Switzerland, as well as in the European Union’s proposed Unified Patent Court, and it discusses advantages and disadvantages of their use. The Article finally proposes increasing technical expertise in the U.S. judiciary by utilizing technically trained judges or staff. It further suggests streamlining all U.S. patent litigation into a group of urban district courts, which could employ neutral technical experts.