By Barry Herman
The William and Mary Law Review has recently published a study entitled “Court Specialization: An Empirical Study of Claim Construction Comparing Patent Litigation Before Federal District Courts and the International Trade Commission.”  The study was authored by David L. Schwartz, Assistant Professor of Law at The John Marshall Law School in an effort to predict the effectiveness of specialized patent trial courts which are currently being considered by Congress.

In the study, Mr. Schwartz suggests that “proposed quasi-specialized patent courts should be approached with some skepticism.”  Mr. Schwartz bases his suggestion on the fact that his study found little empirical evidence that specialized patent courts would be more accurate on the essential issue of claim construction.  Using the ITC as an example of a specialized patent court, the study compared the reversal rates of ALJs and District Court judges on the issue of claim construction.  In particular, the study found that the ITC’s reversal rate was slightly higher at 31.0% than the reversal rate of 30.7% averaged for the five busiest district courts (i.e., N.D. Cal., C.D. Cal., N.D. Ill., D. Del., and S.D.N.Y.).  In view of the reversal rates, Mr. Schwartz concludes that ALJs perform no better than district court judges on the essential issue of claim construction.  Further, Mr. Schwartz suggests three possible explanations for the apparent similar performance of the District Court and ITC on claim construction issues.  The explanations are that “(1) trial judges (including ALJs of the ITC) cannot master claim construction; especially without a technical background; (2) the Federal Circuit’s claim construction case law is poorly articulated; or (3) claim construction is inherently indeterminate.”


Copyright © 2020 Oblon, McClelland, Maier & Neustadt, L.L.P.