Sunday, March 26, 2006

Kimberly Moore on specialty judges for patent litigations

I noticed the Patently-O blog was talking about Kimberly Moore. I had mentioned Congressional testimony she gave about the need for specialty judges for patents, and I saw recently someone had challenged the proposition (in IP Law & Business).

Of the Moore proposal, from You Only Look Twice, IPT, p. 18 (Nov. 2005):

n16. Chicago Daily Law Bulletin (Oct. 7, 2005). Testimony was given
by Judge Thomas S. Ellis III and Professor Kimberly Moore. Moore asserted that
the (high) reversal rate in patent cases "undermines confidence in
district-court decision making."

It is also true that Moore stated:

Let me caveat this proposal by saying that I am not meaning to criticize the existing district court judges. They are charged with a difficult job and an ever increasing workload. District court judges work hard to resolve patent cases. In fact, many excellent patent jurists have evolved from this group. Yet, even some of these judges have raised concerns about adjudicating patent cases and one has publicly advocated for a specialized trial court to adjudicate patent cases. See Judge James F. Holderman, Judicial Patent Specialization: A View From the Trial Bench, 2002 U. ILL. J.L. TECH. & POL'Y 425 (2002).

Of course, Judge Ellis, at the same hearing, testified against the proposal of specialty judges.

Moore did cite some of her own papers: See Kimberly A. Moore, Markman Eight Years Later: Is Claim Construction More Predictable?, 9 LEWIS & CLARK L. REV. 231 (2005). See also Kimberly A. Moore, Are District Court Judges Equipped to Resolve Patent Cases?, 15 HARV. J. L. & TECH. 1 (2001).

Her incorrect representation (in Boston U. L. Rev.) of Robert Clarke's position on the patent grant rate issue has not been discussed.


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