The Local Rules of Patent Procedure
Congress, the Executive, and the Judiciary have all had "patent litigation abuse" on their minds recently. The concern is that too many frivolous patent suits are being filed and used to extract unwarranted settlements. The story is that bad actors — patent assertion entities (PAEs) or, more pejoratively, "patent trolls" — are suing small companies and end users for patent infringement even though PAEs make no patented products themselves. During the past year, Congress proposed close to a dozen bills aimed at curbing patent litigation abuse, the Executive took various anti-troll measures, and the Supreme Court decided a pair of cases that make it easier to shift fees based on patent litigation misconduct.
In the meantime, federal district courts have been addressing the patent litigation situation for years through procedural reform. Beginning in 2000, districts started adopting local patent rules to manage patent litigation. Today, thirty district courts in twenty different states have comprehensive local patent rules, and many more individual judges have adopted "local-local" rules that apply to patent cases in their courts. While commentators have generally lauded the efforts of district courts to manage patent litigation, the consequence is highly divergent patent practice from one federal district court to the next.
This Article is the first academic treatment of local patent rules to consider their effect both on patent policy and our federal system of civil procedure. It argues that the local patent rules movement undermines policies germane to patent law, particularly uniformity, and transgresses the trans-territorial and trans-substantive ideals of the Federal Rules of Civil Procedure. Yet, specialized procedural rules appear not only to be the current reality in patent litigation, but the inevitable future as well. The Article therefore proposes the promulgation of a national set of procedural rules to govern patent litigation — the Federal Rules of Patent Procedure — which will borrow from and be shaped by the local patent rules experiment.