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Do specialized trial court judges make more accurate decisions in patent law cases? In 2011, Congress passed a law setting up a ten-year patent law pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen selected district courts. Now that the five-year mark has passed, has the program had its intended effect of increasing accuracy, as measured by less reversal by the appellate court? In this Article, I analyze over 20,000 trial-court patent cases filed from late 2011 to 2016, focusing specifically on whether cases heard by district court judges participating in the patent law pilot program differ from those before non-pilot judges. I find that the types of cases heard before pilot judges differ. Pilot judges are less likely to rule in favor of the patentee and they are more likely to take cases to trial. Pilot judges also make different kinds of “mistakes” than non-pilot judges. Of the near three-hundred cases where the Federal Circuit rules on the substantive patent law issues on appeal, my results indicate that even controlling for other factors, judges that are part of the pilot program are not less likely to be overturned on appeal by the Federal Circuit. After discussing the empirical results, the Article proposes suggestions for reform. Patent law is unique in that it is one of the only areas of law where Congress delegates policymaking to the courts. The current piecemeal approach to patent reform by changing institutions in isolation to solve specific problems is misplaced. Multi-institutional reform of the patent system — focused on giving policymaking power to the bureaucracy to allow for less biased and more expert decision making — is needed in order to properly position courts as interpreters of the law rather than as being the vehicle primarily responsible for fashioning policy on an ad hoc basis.

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Boston College Law Review

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