Public Transportation Preservation Act of 2010

Mr. Speaker, it's been 8 years since this bill began being kicked around as a pilot. Some people would be less happy to announce it than I, but I would like to find them. Eight years ago when I began the dialogue with my colleagues, then the subcommittee ranking member, Mr. Berman, said, Tell me more about this problem. And I told him from life experience of the problem of these very talented judges, magistrates, and Federal judges who wanted to do a good job on patents, but it was almost always their first patent, and they lacked a support system to make it happen in both large and small districts. I told them how the southern district of San Diego had found ways to try to improve the system, gleaning some additional expertise from one or two judges who preferred these cases over some others and who actually sought them out. I also told some of my fellow colleagues about the horror stories of a magistrate ascending to the bench, finding that what he got from each of the other members were all their patent cases, and suddenly he had a backlog of these, had to find out what a Markman hearing was, had to start getting into technical issues, one on electronics, another on biotech, another one on telecommunications.

So over the years, we have all been educated well beyond that initial anecdotal example. Then Orrin Hatch, Chairman Hatch, was supportive. Now Chairman Leahy is supportive. All along the way, my classmate Adam Schiff has been supportive, along with both chairman, and ranking member at times, Howard Berman. Chairman Conyers has continued to be supportive and has helped me, along with Ranking Member Lamar Smith, vote this out early on in this Congress.

But I have a special thanks for Chairman Leahy who made sure this bill was pulled out of the comprehensive patent reform bill because its time truly had come to begin saying to judges throughout the country that, in fact, we were going to help them help themselves be better at this. Although it's called patent pilot, over the years it has been expanded to the number of jurisdictions that it could be used in to where it's become quite clear that this will be a challenge to be expanded countrywide in whatever format the study shows is best.

I find that this Congress, in its lame duck session, has done a few good things. No surprise that this is one that I think is particularly good, particularly good because, as Congressman Schiff just said, we are, in fact, dealing in the lame duck session with a problem that has been pervasive since before Congressman Schiff and I became Members of this body 10 full years ago.

So as I thank each of you for your passage of this bill, and with full confidence that this will become a broader consensus throughout the Federal system, I also join with my friend and colleague Adam Schiff in saying that the next Congress, in the early days, we must truly dedicate ourselves to comprehensive patent reform, to take each of the major issues that have been difficult and have, Congress after Congress, failed to become law, and find ways to resolve some or all of them for the good of the American people who find themselves spending 2, 3 or 8 or $10 million on what can often be a frivolous suit.

Again, Mr. Poe, I thank you for yielding me the time. I ask all my colleagues to vote for this small but important change in patent law.

Mr. Speaker, I rise today in support of H.R. 628, a bill to establish a pilot program in certain United States district courts to encourage enhancement of expertise in patent cases among district judges. Congressman Adam Schiff and I have worked together on this legislation since the last Congress, and I am grateful for the chance to move this legislation forward today.

The high cost of patent litigation is widely publicized, and it is not unusual for a patent suit to cost each party over $10,000,000. Appeals from district courts to the Court of Appeals for the Federal Circuit are frequent. This is caused, in part, by the general perception within the patent community that most district court judges are not sufficiently prepared to hear patent cases. I drafted this legislation in an attempt to decrease the cost of litigation by increasing the success of district court judges.

H.R. 628 establishes a pilot project within at least six district courts. Under the pilot, judges decide whether or not to opt into hearing patent cases. If a judge opts in, and a patent case is randomly assigned to that judge, that judge keeps the case. If a case is randomly assigned to a judge who has not opted into hearing patent cases, that judge has the choice of keeping that case or sending it to the group of judges who have opted in. To be a designated court, the court must have at least 10 authorized judges with at least 3 opting in, or certify that they have adopted local rules for patent and plant variety protection cases.

The core intent of this pilot is to steer patent cases to judges that have the desire and aptitude to hear patent cases, while preserving random assignment as much as possible. The pilot will last no longer than 10 years, and periodic studies will occur to determine the pilot project's success.

I am happy to say that H.R. 628 is supported by software, hardware, tech and electronics companies, pharmaceutical companies, biotech companies, district court judges, the American Intellectual Property Law Association, and the Intellectual Property Owners Association among others.

This legislation is a good first step toward improving the legal environment for the patent community in the United States. H.R. 628 should not, however, be taken as a replacement for broader patent reform. We still need to address substantive issues within patent law, and I look forward to working with my colleagues on that broader effort as well.

I thank Judiciary Committee Chairman John Conyers and Ranking Member Lamar Smith, as well Senators Hatch and Leahy. I also thank my staff and the committee staff who worked so hard to make this possible.

I encourage all of my colleagues to support H.R. 628.

Mr. Speaker, I yield myself as much time as I may consume.

It is widely recognized that patent litigation is too expensive, too time-consuming, and too unpredictable. H.R. 628 addresses these concerns by authorizing a pilot program in certain United States district courts to promote patent expertise among participating judges.

The need for such a program becomes apparent when one considers that fewer than 1 percent of all the cases in United States district courts, on average, are patent cases and that a district court judge typically has a patent case proceed through trial once every 7 years. Nevertheless, these cases account for 10 percent of complex cases, and they require a disproportionate share of attention and judicial resources.

Notwithstanding the investment of additional time and resources, the rate of reversal on claim construction issues--the correct interpretation of which is central to the proper resolution of these cases--is unacceptably high. The premise underlying H.R. 628 is, succinctly stated, practice makes perfect, or at least better. Judges who focus more attention on patent cases will be expected to be better prepared to make decisions that can withstand appellate scrutiny.

The bill that we have before us today is the product of extensive oversight hearing that focused on proposals to improve patent litigation, which was conducted by the Subcommittee on Courts, the Internet, and Intellectual Property in October of 2005. This litigation is similar to H.R. 34 from the 110th

Congress and H.R. 5418, a bill that passed the House unanimously during the 109th Congress. More recently, the House passed H.R. 628 on March 17, 2009. The other body passed the legislation with amendments on December 13. The new changes improve the measure by eliminating a $10 million authorization and by expanding the bill's application to smaller judicial districts.

Mr. Speaker, H.R. 628 requires the director of the Administrative Office of the Courts to select at least six district courts to participate in a 10-year pilot program that begins no later than 6 months after the date of enactment. The bill specifies criteria the director must employ in determining eligible district courts. It also contains provisions to preserve the random assignment of cases and to prevent the selected districts from becoming magnets for forum-shopping litigants and lawyers.

The litigation additionally requires the director in consultation with the director of the Federal Judicial Center and the chief judge of each participating district to provide the committees on the Judiciary of the House of Representatives and the Senate with periodic progress reports. These reports will enable the Congress and the courts to evaluate whether the pilot program is working and, if so, whether it should be made permanent.

Mr. Speaker, the bill does not substantially amend the patent laws or the judicial process, nor does it serve as a substitute for comprehensive patent reform that is needed. Rather, H.R. 628 constructs a foundation that future Congresses and the courts may use to assess the merits of future related proposals.

Before closing, Mr. Speaker, I would like to take a moment to commend the superb job that the bill's sponsors, Representatives Issa and Schiff, did in seeking out and incorporating the advice of numerous experts as they developed this bipartisan important legislation. Their success and cooperation have resulted in a good bill that deserves the support of Members of the House on both sides of the aisle. I urge Members to support this bill.

I reserve the balance of my time.

Mr. Speaker, I yield such time as he wishes to consume to the gentleman from California (Mr. Issa), who is a sponsor of this bill.

I yield myself as much time as I may consume.

Mr. Speaker, patent law is complicated. It is difficult. It is messy. Now, that's why law schools have a special track for those that want to be patent lawyers. They get their own certification, in many law schools, because it is so complicated. And then when those cases go to court, they need to be presented to a judge that has a lot of experience in patent law. It is a difficult, complex legal issue in almost every case. And those cases take, sometimes, years before they are resolved in court, then on appeal, and the reversal rate is extremely high.

This legislation, hopefully, corrects that problem in giving those district judges that want to hear these cases that special expertise in hearing a great number of these cases, becoming experts and understanding the law, the complexities of the law and, hopefully, getting a better and quicker result in the courtrooms of the United States. I support this legislation.

I want to commend, once again, the two representatives from California, Mr. Schiff and Mr. Issa, for their long endurance over sponsoring this legislation.

Mr. Speaker, I yield back the balance of my time.

I thank the gentleman.

Mr. Speaker, I want to join in acknowledging the leadership of my colleague, Darrell Issa from California, in developing this bill. He has fought hard for it for several years now. We are hoping this is the time we succeed. We have a deep interest in improving the efficiency of the patent process, in taking a lot of the costs out, some of the litigation costs and the inefficiencies in the patent review, and also by improving the quality of patents. We are at present trying to work on those broader patent reforms. We hope we can succeed with those. This bill is a win-win situation. Through it, we can expand upon the knowledge and expertise of the courts that decide patent issues. We can allow the courts to identify judges that have an interest in this area and that want to engage in further education to improve the quality of decision making.

Unfortunately, these cases are often very complex. The result is that you get decisions that are too often reversed on appeal. So to the degree that we can encourage some specialization in the district courts, improve the cost quality of decisions in the court process, we can reduce costs and we can improve the process.

So I think that this pilot project is a very important step forward.

Again, I want to congratulate my colleague. I know how hard he has worked on this. It is good to have somebody with the experience of getting a patent himself. I have some fabulous patent ideas, multimillion-dollar ideas. I haven't gotten them patented yet. But when I do, I want to make sure that there is a good, efficient system. And should anyone have the unmitigated temerity to actually challenge one in court, I want judges who are well educated and understand that my patent is valid and any claim to the contrary is without merit.

I congratulate my colleague, thank him for his superb work, and urge my fellow colleagues to support the bill.

I rise today in support of H.R. 628, legislation that will enhance expertise in patent cases among district judges, provide district courts with resources and training to reduce the error rates in patent cases, and help reduce the high cost and lost time associated with patent litigation.

I joined my colleague Mr. Issa in introducing this legislation because I believe this proposal will provide us with valuable and important insight on the operation of patent litigation in the federal court system.

In the 109th Congress, the Judiciary Subcommittee on Courts, the Internet, and Intellectual property held a hearing on improving federal court adjudication of patent cases in response to high rates of reversal at the Federal Circuit. At this hearing, a number of proposed options to address this issue were discussed. Serious concerns were expressed with a number of proposals, including those that would create new specialized courts and those that would move all patent cases to existing specialized courts.

These concerns centered around the need to maintain generalist judges, to preserve random case assignment, and to continue fostering the important legal percolation that currently occurs among the various district courts. Our proposal aims to avoid these pitfalls.

H.R. 628 establishes a mechanism to steer patent cases to judges that have the desire and aptitude to hear such cases, while preserving the principle of random assignment in order to prevent forum shopping among the pilot districts.

The legislation will also provide the Congress and the courts with the opportunity to assess the program on a periodic basis. Reports will examine whether the program succeeds in developing greater expertise among participating District judges, the extent to which the program contributes to improving judicial efficiency in deciding these cases, and whether the program should be extended, expanded or made permanent.

By providing our courts with the resources they need to carefully consider patent cases, we will ultimately save the American taxpayer money.

The legislation has been passed by the House in the 109th and 110th Congresses. We are pleased that companion legislation has been introduced by Senator Specter, and we hope that the other body will act on this proposal this Congress.

While this legislation is an important first step at addressing needed patent reforms, I believe that Congress must continue to work on a more comprehensive reform of our patent system. I look forward to continuing my work with my colleagues in the Judiciary Committee and in Congress to address these issues.

Mr. Speaker, I rise in strong support of H.R. 628, the ``Patent Judges Pilot Program in Certain District Courts.'' I urge my colleagues to support this bill. This bill will provide more expertise in skill in a difficult area of law: patent law. Americans hold the patents and patent law as important integral to our very lives. Patents reward ingenuity and creativity.

As the Blackberry litigation demonstrated, deficiencies in the current system have the ability to paralyze America. Indeed, the New York Times noted that ``[something] has gone very wrong with the United States patent system.'' The Financial Times opined that ``[i]t is time to restore the balance of power in U.S. patent law.'' Indeed, there has been a cry for change in the patent system and increased expertise for many years now.

The Constitution mandates that we ``promote the progress of science and the useful arts . . . by securing for limited times to . . . inventors the exclusive right to their . . . discoveries.'' In order to fulfill the Constitution's mandate, we, as Members of Congress, must examine the system periodically to determine whether there may be flaws in the system that may hamper innovation, including the problems described as decreased patent quality, prevalence of subjective elements in patent practice, patent abuse, and lack of qualified persons to study patent law. H.R. 628 attempts to correct some of these problems.

H.R. 628 creates a pilot program to increase the expertise of U.S. District Court judges who wish to hear cases that involve issues related to patents or plant variety protection. The bill provides for the designation of not less than 6 United States district courts in at least 3 different circuits to take part in the pilot program. In the designated courts, judges who elect to hear patent or plant variety protection cases will be designated to do so by the chief judge. Cases will be assigned randomly, but undesignated judges may decline to accept patent

and plant variety protection cases. The bill authorizes the expenditure of not less than $5 million per year for up to 10 years to pay for the educational and professional development of designated judges, and for compensation for law clerks with technical expertise related to patent and plant variety protection cases to be appointed by the designated courts.

The high cost of patent litigation is widely publicized. It is not unusual for a patent suit to cost each party upwards of $10 million. Appeals from United States district courts to the Federal Circuit are frequent, in part because of the perception within the patent community that most district court judges are not sufficiently prepared to adjudicate complex, technical patent cases. In 2008, 45 percent of the patent cases that were appealed to the Federal Circuit were reversed in whole or in part or vacated and remanded. This bill seeks to promote consistency among United States district courts by increasing the expertise of district court judges, thus providing for more certainty in intellectual property protection.

Taken together, these improvements would bring the American patent system up to speed for the twenty-first century. Instead of remaining a hindrance to innovation and economic growth, the patent system should work for inventors, ensuring America's patent system remains the best in the world and prevents risks to innovation.

I am encouraged by this bill, and I am hopeful that minorities and women take advantage of this pilot program. The patent judges pilot program and pilot program for law clerks provides for the educational and professional development of the designated district judges in matters relating to patent and plant variety protection, and for compensating law clerks with expertise in technical matters arising in patent and plant variety protection cases. This is yet another step that America is taking to ensure that its patent system is the best in the world. I urge my colleagues to support this bill.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

I want to thank my partner in this bill, Adam Schiff. For three Congresses in a row, we have worked together and enjoyed a luxury of riches. The bill passes unanimously on suspension, only to be not quite broad enough to appeal to some people in the Senate. I think many of those questions were worked out by agreement in the last Congress, and I believe we have a real chance of moving this bill into law in this Congress.

I thank Mr. Johnson and the ranking member, Howard Coble, for both being cosponsors of this bill. I believe we have made some technical adjustments that will inspire not just the three districts of California, but also Massachusetts, New Jersey and some of the other major areas in which these types of legislation have run into a lot of problems, particularly the fact that we have amended the bill to support those jurisdictions which adopt local rules even if they would otherwise not be eligible that would allow for this type of specialization.

On that word, I want to make sure that everyone in the Congress understands, on both sides of the dome, that when we say specialization, we are not trying to create a specialty court; just the opposite. We are trying to save the district court as we know it. I have had a number of patents properly adjudicated both as a defendant and as a plaintiff, and what I have discovered is that the judges, given the tools at the district court level and given the opportunity to practice more frequently, or at least having at least one judge who has practiced more frequently, they will adjudicate these cases properly. They will make good Markman decisions, and they will in fact understand the nuances of patent. Without that expertise lying in each of the district courts, particularly the large ones, we undoubtedly will continue to have cases which get ping-ponged around and which get decided, unfortunately, incorrectly the first time and only decided correctly after they have come back from the Fed circuit.

So as many have called for the creation of a specialty court similar to the appellate court, the Fed circuit, we are trying here through this patent pilot to do just the opposite: to retain at the district court closest to the people the opportunity to have their patents heard, but to provide them the additional tools necessary to do it, and as was said very kindly by both Mr. Schiff and Mr. Johnson, to give them the frequency of those judges who would like to have that frequency of doing more than one case every seven years. So with that, I again urge passage of this bill.

I reserve the balance of my time.

I would make myself the last speaker, if the gentleman is prepared to close.

I yield myself 30 seconds to again recognize that this bill has passed this House overwhelmingly repeatedly. This time I believe we have perfected on a bipartisan basis with a companion, including Senator Specter in the Senate, the ability to move this as a separate freestanding bill quickly, and then I look forward to working particularly with Adam Schiff on these many other pieces of legislation and other reforms that we have talked about at length, and of course with the chairman of the subcommittee, Mr. Johnson.

Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.