H.R. 628: To establish a pilot program in certain United States district courts to encourage enhancement of expertise in patent cases among district judges

H.R. 628

To establish a pilot program in certain United States district courts to encourage enhancement of expertise in patent cases among district judges

March 17, 2009 (111th Congress, 1st Session)

Staff Contact

Floor Situation

On March 17, 2009, H.R. 628 is being considered on the floor under suspension of the rules, requiring a two-thirds majority vote for passage. This legislation was introduced by Rep. Darrell Issa (R-CA) on January 22, 2009. The bill was referred to the Committee on Judiciary, which has taken no official action.

Bill Summary

H.R. 1127 would authorize $5 million annually to establish a ten year pilot program in at least five U.S. district courts in an attempt to improve the expertise of judges that hear patent cases.

The pilot program would allow district judges to request patent-related cases that deal with one or more issues arising under any law. The senior judge of a district court would then be authorized to assign patent cases and "plant variety protection" cases to those district judges that request such cases and to remove such cases from a judge's case load without experience with these types of cases.

The Director of the Administrative Office of the United States Courts would be required to designate five or more U.S. district courts, in at least three different judicial circuits, in which the pilot program would be carried out. The Director would be required to choose the district courts in which the largest number of patent and "plant variety protection" cases was filed in the most recent calendar year.

In addition, the legislation would authorize funding for the educational and professional development of those district judges seeking to participate in the pilot program and for the compensation of law clerks with expertise in technical matters arising in patent and plant variety protection cases.



Title 28 of the United States Code gives United States district courts original and exclusive jurisdiction over "any civil action arising under any Act of Congress relating to patents."

Patent law is one of the most unique and complex areas of the United States judicial system. In a typical calendar year, numerous patent-related cases are filed in district courts. However, most of these cases are settled before they reach the trial phase.

As with criminal and civil cases, the normal practice is to randomly assign patent cases to the various judges within a district.  Due to this practice of random assignments, district court judges often have little exposure and experience in patent case law.  However, the nature of these cases tends to be resource-intensive and account for a disproportionate amount of a district court judge's time and effort.

In 2001, Kimberly A. Moore, an Associate Professor of Law at George Mason, wrote an article called "Are District Judges Equipped to Resolve Patent Cases." In the article, Moore notes that "district court judges improperly construe patent claim terms in 33 percent of the cases appealed to the Federal Circuit." This is in contrast to the overall reversal rate for all other types of criminal and civil cases, which is less than 10 percent.

Patent Law
Article I, Section 8, of the United States Constitution provides patent protection "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In the U.S., a patent is a right to exclude others from making, using, selling, offering for sale, exporting, exporting components to be assembled into an infringing device outside the U.S., importing the product of a patented process practiced outside the U.S., inducing others to infringe, offering a product specially adapted for practice of the patent, and other very carefully defined categories.

Plant Variety Law
The Plant Variety Protection Act of 1970 (PVPA) is an intellectual property statute in the United States. The PVPA gives breeders up to 25 years of exclusive control over new, distinct, uniform, and stable plant varieties.


A CBO score for H.R. 628 was not available at press time, however, the bill would authorize $5 million annually for each year of the ten-year pilot program. Funds authorized under the bill would remain available until expended.