By Jason Rantanen
The coming year is certain to bring a host of interesting and important changes to patent law that we will continue to write about, and I wish all of Patently-O's readers a prosperous, rewarding, and enjoyable 2011. Not to be overlooked, though, are a few events that occurred during the past few weeks:
Judge Kathleen O'Malley joins the Federal Circuit: Just a few days after the Senate confirmed her nomination, former Northern District of Ohio Judge Kathleen O'Malley was sworn in by Chief Judge Rader. She becomes the tenth active non-senior judge on the court. As an experienced jurist, she will likely have an immediate impact on the court's jurisprudence, although presumably she will not participate in the two currently-pending en banc appeals, TheraSense v. Becton Dickinson and Tivo v. Echostar.
Changes to Federal Rules of Appellate Procedure: On December 1, 2010, three changes to the Federal Rules of Appellate Procedure went into effect. These changes consisted of adding a definition of the term "state" that includes the District of Columbia and United States commonwealths and territories (Fed. R. App. P. 1) and modifying several rules that referred to Federal Rule of Civil Procedure 58(a)(1). These rules now refer to Federal Rule of Civil Procedure 58(a) (the separate document judgment rule) in its entirety. In addition, Fed. R. App. P. 29 now requires more information about who assisted with an amicus brief, including whether a party's counsel authored the brief in whole or in part, whether a party or its counsel contributed money intended to fund preparing or submitting the brief, and the identity of any persons other than the amicus curiae, its members, or its counsel who contributed money that was intended to fund preparing or submitting the brief. The complete list of changes is available in a letter from Jan Horbaly, the CAFC Clerk of Court.
USPTO Opens Detroit Office: As Dennis predicted earlier, on December 16, Director Kappos announced plans to open the first USPTO satellite office in Detroit, Michigan. The office will open in 2011, and represents an effort to broaden the PTO's workforce through geographic diversity. Depending on the success of the Detroit office, the PTO will consider opening additional satellite offices.
Patent Pilot Program for U.S. District Courts: On December 17, Congress gave its final stamp of approval to H.R. 628, which establishes a pilot program to encourage the enhancement of patent case expertise among district court judges. Under the Act, at least six district courts will be designated for the program. Judges in these districts will be able to request to hear cases involving patent issues, although patent cases will still be randomly assigned regardless of whether a judge is so designated. However, non-designated judges may decline to accept a patent case if it is assigned to them, and should this occur the case will be re-assigned to a designated judge. In effect, this program will hopefully provide a slight push towards some judges hearing more patent cases than others (and thus developing more expertise in that area), but stops well short of creating a specialized court of trial judges who hear only patent cases (and, unlike the original bill, in the final version there is no money appropriated for specialized training or clerks for designated judges). The Act also requires periodic reporting of comparison data between designated judges and non-designated judges on issues such as their respective reversal rates by the CAFC.