Document Type



This Article challenges the conventional wisdom of patent reform that looks primarily to the top-Congress and the Supreme Court-for changes. Within the theoretical framework of dynamic federalism, patent reform can involve an overlap of both the national and local levels of the federal government. Patent reform can occur at the local level and serve both local and national interests. Patent reform at the local level is dynamic as locales can serve as laboratories for changes, vertically compete with the national government, and become influential catalysts for changes that have impacts at the national level.

This Article critiques the top-down, national-only approach to patent reform that has neglected powerful bottom-up efforts by local judges and members of local bar associations throughout many regions of the United States. Far from the halls of Congress and the gavel of the United States Supreme Court, local judges and bar associations collaborate to streamline the patent litigation process and shape litigants' conduct. They transform their districts into centers of patent expertise, with judges having a keen knowledge of patent law and the daily operation and management of complex patent litigation. These centers of patent expertise adjudicate cases within a short time frame, increase access to justice, and deliver swift results. They reduce the fear of patent complexity and encourage judges and j uries to participate in the process. In nine years, the local patent reform movement has spread to federal courts in California, Delaware, Georgia, Texas, Minnesota, Washington, Pennsylvania, New Jersey, Ohio, North Carolina, Missouri, Massachusetts, Illinois, and New York. Local reform is in the spirit of dynamic federalism where both local and national interests are served.

To be clear, this Article does not advocate against reform activities in Congress and the Supreme Court. That approach would be within the mode of static dual federalism, which this Article does not embrace. Instead, this Article argues that in some instances, patent law reform can occur interactively at both levels, national and local. The local patent-reform process identified in this Article serves as a valuable reminder that changes related to an area of strictly federal law, such as patent law, can be accomplished locally and yield important results that benefit the entire nation. Local patent reform does not change substantive patent law, allaying fears of violating the supremacy of national patent law. Instead, local patent reform focuses on the development and utilization of local procedural rules to streamline patent litigation. Several districts have already undertaken these reform efforts and experienced significant benefit, which suggests that such efforts should be encouraged, in light of the impasse on patent reform at the top over the last few years.

This Article proceeds as follows. Part I discusses the current state of the patent system and factors contributing to claims of a "broken" patent system. Part II advocates a departure from the normative static thinking of patent-law reform. It is time to embrace a spirit of dynamic federalism by acknowledging and encouraging innovative reform at the local level, thereby solving, in part, a national problem. Part III identifies and explains the top-down approaches to patent reform that epitomize conventional thinking about repairing the broken patent system. The Supreme Court has ventured into patent reform by accepting and deciding an unprecedented number of patent cases over the last few years. The Court's limited experience and exposure to the complexity of the patent system prevents needed meaningful reform for the patent system. Congress has embarked on patent-law reform by proposing comprehensive legislation that positions interest groups against each other and therefore stalls one proposal after another.

Part IV identifies the local patent reform movement sweeping through numerous regions of the United States. Local federal judges and bar associations together create and implement systemic procedures to curb abuses in patent litigation, reduce costs associated with patent litigation, shorten litigation time, increase access to justice, and enhance local district and judicial expertise in handling patent cases. Their reform efforts provide benefits beyond their localities, solving part of the gridlock in Congress.

Instead of encouraging the local patent-reform movement, Congress has willfully attempted to punish the local, bottom-up reformers. Part V highlights recently proposed legislation that attempts to punish, though not on its face, a maverick district known for its local reform--the Eastern District of Texas-for its adoption of the Local Patent Rule and the transformation of the district into a national judicial center of patent expertise. The proposed patent-reform legislation is an example of the politicization of patent reform at the national level that ignores the important contributions ofjudges and bar associations at the local level.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.