Deconfounding and Sandboxing Patent Litigation with a Specialized Patent Trial Court

Abstract

According to a recent study, patent litigation has been the target of multiple reform efforts over the past several decades, with mixed results that have left its fundamental dynamics—and problems—stubbornly intact. To make patent litigation more amenable to diagnosis and treatment, this Article proposes setting up a single, specialized Article III patent trial court that has exclusive original jurisdiction over patent cases and is empowered to promulgate its own rules of practice and procedure. Although the suggestion to set up a specialized patent trial court is not new, the existing rationales for doing so focus primarily on enhancing the quality of adjudication and eliminating forum shopping. But the literature has overlooked other potential benefits of such a court. Specifically, it can provide a controlled environment that could: (1) improve the ability of judges and policymakers to diagnose problems in patent litigation by removing certain variables, keeping other variables constant, or mitigating their variance (e.g., in the procedural rules, venue, trial judge experience), thereby decreasing the number and influence of potential confounders; and (2) allow for “sandboxing,” which can facilitate the adoption of reforms and expand the universe of solutions because the impact of a change that could materially alter the dynamics of patent litigation (and the risk of failure) may remain localized without affecting other parts of the federal court system or raise trans-substantivity concerns. More importantly, the controlled environment provided by a specialized trial court may make it easier to have an iterative diagnosis-treatment cycle, which is necessary for a complex system (like patent litigation) where the initial attempt at diagnosis or reform is unlikely to yield a definitive answer or a lasting solution. It is expected that the diagnostic- and reform-facilitating benefits of a specialized trial court—when aggregated with the other theorized benefits of specialized courts suggested in the literature—could outweigh the potential downsides, such as a lack of percolation, susceptibility to capture, and tunnel vision from the loss of the generalist perspective.