Effect Of KSR On Appeal by 4kGN8IE

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									Is the Patent Pilot Program
      Doomed to Fail?
                By Greg Upchurch
         LegalMetric Director of Research
               J.D.-Yale Law School
Adjunct Professor-Washington University School of
                        Law
         Patent Pilot Program
• On January 4, 2011, Congress passed an Act
  establishing a Patent Pilot Program for
  “developing expertise in patent and plant
  variety protection cases” and
• “improving the efficiency of the courts
  involved by reason of such expertise”
    Patent Pilot Program Metrics
• To determine whether the Patent Pilot judges
  develop the desired expertise, the Program is
  required to measure “rate of reversal by the
  Court of Appeals for the Federal Circuit, of
  such cases on the issues of claim construction
  and substantive patent law”
• To measure efficiency, the Program looks at
  time to trial and time to disposition by
  summary judgment
    Patent Pilot Program Courts
• The Program has been implemented in
  14 district courts
• These courts have designated 91 judges
  and magistrates to participate in the
  Program, not counting designated judges
  who have already retired.
  Comparison of Program Judges
    with Non-Program Judges
• Most of the Program Judges have
  some experience with patent
  litigation and many have
  considerable patent experience
• The same is true of Non-Program
  Judges
 Metrics to Compare Program and
       Non-Program Judges
• Program and Non-Program Judges are
  compared by:
  – Overall Win Rates (includes consent and default
    judgments)
  – Contested Win Rates (does not include consents and
    defaults)
  – Complete Affirmance Rates (affirmed only)
  – Reversal Rates (reversed on any issue)
  – Time to Trial
  – Time to Disposition by Summary Judgment
      Overall and Contested Win Rates

             70
                  61
                             56
             60


             50


             40                                    Non-Pilot
Percentage




                                                   Pilot
                                              27
             30                   23


             20


             10


             0
                   Overall        Contested
 Overall and Contested Win Rates
• Overall Win Rates
  – Non-Pilot Judges have a somewhat higher overall
    win rate than Pilot Program Judges (61% v. 56%).
    Note: cases with no judgment entered in favor of
    a party are not included in win rates.
• Contested Win Rates
  – Conversely, Pilot Program Judges have a
    somewhat higher contested win rate than Non-
    Pilot Judges (27% for Pilot v. 23% for Non-Pilot)
             Complete Affirmance Rates and
                    Reversal Rates
                      60
                                        58
             60



             50



             40

                                                             Non-Pilot
Percentage




                                                             Pilot
             30                                         24
                                             20

             20



             10



             0
                  Complete Affirmance        Reversal
  Complete Affirmance Rates and
         Reversal Rates
• The Complete Affirmance Rates (affirmance
  with no other action by the Federal Circuit)
  were similar, with the Non-Pilot Judges having
  a slight advantage (61% for Non-Pilot, 58% for
  Pilot Judges)
• The Reversal Rates (reversed in whole or in
  part) showed a larger advantage for the Non-
  Pilot Judges (20% Reversal Rate v. 24% Rate
  for Pilot Judges)
                  Reversal Rates by Experience:
                    Number of Patent Cases
             35



             30



             25



             20                                                                                          Non-Pilot Reversal Rate
Percentage




                                                                                                         Pilot Reversal Rate
                                                                                                         Linear (Non-Pilot Reversal Rate)
             15
                                                                                                         Linear (Pilot Reversal Rate)


             10



              5



              0
                  0-10   11-20   21-30   31-40   41-50   51-60   61-70   71-80   81-90   91-100   100+
     Reversal Rates by Experience:
       Number of Patent Cases
• Reversal Rates, the Chosen Metric for the Patent Pilot
  Program, Do Not Show the Expected Correlation
  Between Patent Experience and Reversal on Appeal
• For Pilot Judges (see red trendline in previous chart) the
  Reversal Rate goes up as the number of patent cases
  increases.
• For Non-Pilot Judges (see blue trendline in previous
  chart) the Reversal Rate is substantially independent of
  experience.
• Neither is consistent with the hypothesis that increased
  experience results in fewer reversals.
                  Reversal Rates by Experience:
                   Number of Patent Appeals
             45


             40


             35


             30


                                                                 Non-Pilot Reversal Rate
Percentage




             25
                                                                 Pilot Reversal Rate
             20                                                  Linear (Non-Pilot Reversal Rate)
                                                                 Linear (Pilot Reversal Rate)
             15


             10


              5


              0
                  1   2   3   4   5   6   7   8   9   10   11+
    Reversal Rates by Experience:
     Number of Patent Appeals
• When experience is measured by the number
  of appeal decisions, the Reversal Rates again
  do NOT support the hypothesis.
• The Pilot Judge Reversal Rate as a function of
  appeal decisions (red trendline) is basically
  independent of experience.
• The Non-Pilot Judge Reversal Rate (blue
  trendline) increases as the number of appeal
  decisions increases.
Time to Trial and Time to Summary
      Judgment Disposition
                                               37.5
                          40
                               35.1

                          35
                                                                                29.5
                          30                                      27.3
Months from Case Filing




                          25
                                                                                             Non-Pilot
                                                                                             Pilot
                          20


                          15


                          10


                          5


                          0
                               Time to Trial          Time to Summary Judgment Disposition
Time to Trial and Time to Summary
      Judgment Disposition
• The Time to Trial and Time to Disposition of
  Case by Summary Judgment were both
  shorter for Non-Pilot Judges than for Pilot
  Judges
  – Time to Trial (35.1 months from case filing for
    Non-Pilot Judges v. 37.5 months for Pilot Judges)
  – Time to Summary Judgment Disposition (27.3
    months for Non-Pilot Judges v. 29.5 months for
    Pilot Judges)
    Time to Trial, by Number of Patent
                    Cases
                          60



                          50




                          40
Months from Case Filing




                                                                                                                        Non-Pilot
                          30
                                                                                                                        Pilot
                                                                                                                        Linear (Non-Pilot)
                                                                                                                        Linear (Pilot)
                          20




                          10




                           0
                               0-10   11-20   21-30   31-40   41-50    51-60    61-70   71-80   81-90   91-100   100+
                                                                  Number of Cases
Time to Trial, by Number of Patent
                Cases
• As shown in the previous chart, the average
  time to trial (measured from case filing) tends
  to increase with an increased number of
  patent cases, both for Pilot Judges (red
  trendline) and Non-Pilot Judges (blue
  trendline)
• The average time to trial for Non-Pilot Judges
  is lower for most experience levels (measured
  by number of cases) than for Pilot Judges
                           Time to Disposition by Summary
                                      Judgment
                          60



                          50




                          40
Months from Case Filing




                                                                                                                        Non-Pilot
                          30
                                                                                                                        Pilot
                                                                                                                        Linear (Non-Pilot)
                                                                                                                        Linear (Pilot)
                          20




                          10




                           0
                               0-10   11-20   21-30   31-40   41-50    51-60    61-70   71-80   81-90   91-100   100+
                                                                  Number of Cases
  Time to Disposition by Summary
             Judgment
• The time to case disposition by Summary
  Judgment for Pilot Judges (red trendline)
  shows a distinct downward trend
• The Summary Judgment time to disposition
  for Non-Pilot Judges shows no similar trend,
  and appears to be independent of experience.
• Query whether the Pilot Judge result is a
  function of outliers at 11-20 and 21-30 cases.
  Time will tell.
                    Conclusion
• There is no apparent correlation between the reversal
  rate by the Federal Circuit of a judge and the number of
  patent cases handled by the judge. If anything, the
  reversal rate appears to increase as the number of patent
  cases increases.
• The time to trial for Pilot and Non-Patent Judges appears
  to increase slightly with increased patent case load.
• The time to disposition by Summary Judgment appears
  to decrease with increasing patent case load for Pilot
  Judges, but no such trend is shown for Non-Pilot Judges.
                   Source
• Data Extracted from LegalMetric’s database of
  over 50,000 patent cases

								
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