Patent Reform and Substance-Specific Procedural Rules

In 2011, Congress passed the America Invents Act, the most comprehensive patent reform legislation in more than half a century.  Yet, Congress is currently considering further patent reform, which appears to be moving forward with the Senate Judiciary Committee approving the bill yesterday.  The current reform measures are designed primarily to curb "patent litigation abuse" by creating special procedural rules for patent cases, including heightened pleading standards, restricted discovery, and more liberal fee-shifting. 

This latest reform effort raises a number of questions.  Some scholars argue that there's simply not enough data to support the legislation, while others say the reforms are unnecessary because courts and other institutional actors have already taken steps to address patent litigation abuse.  Commentators have also claimed that the reforms may seem reasonable in theory, but the actual proposed legislation is too broad and will harm our innovation economy.  I would like to focus on a different question: Are substance-specific procedural rules for patent cases appropriate and, if so, who should make those rules?

Although trans-substantivity is a hallmark of the Federal Rules of Civil Procedure (FRCP), there has been some movement away from this principle recently.  As I discuss in a recent article, that trend is particularly pronounced in the patent context where almost a third of federal district courts have adopted patent-specific local rules, and many individual judges use special standing orders for patent cases.  So there seems to be some consensus about the utility of specialized procedural rules in patent cases, but should it be Congress, district judges, or the Judicial Conference that decides the content of those rules?  I believe the Judicial Conference, which is responsible for proposing amendments to the FRCP, is in the best position to draft a uniform set of procedural rules for patent cases.  While far from perfect, the FRCP rulemaking process is more transparent, balanced, inclusive, and deliberate than the process for enacting legislation or adopting local district court rules.