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WHEN PATENT LITIGATORS BECOME
NEUROSURGEONS
Katie Chang*
Abstract: Patent law is where the law meets the most cutting-edge and innovative
technology of its time. Usually, subject matter experts, with the help of lawyers, are the ones
applying for patents. But when it comes to granting and enforcing patent rights, the job falls
onto lawyers and judges, who, for the most part, are likely not experts in the relevant technical
field. Bridging the gap between technological expertise and legal expertise has been a pain
point in patent litigation, one that Congress has tried to rectify for many years. This Comment
primarily examines one of Congress's solutions-the Patent Pilot Program-and discusses the
changes that such a program could have in the event a similar system is implemented in the
future. One potential change to note is that such a system should institute a standard set of
guidelines and rules for each district to follow when it comes to patent infringement cases.
This would ensure more uniformity across federal district jurisprudence in the field.
INTRODUCTION
Patent infringement litigation has been called the neurosurgery of
litigation.I Judges note that patent cases take up a disproportionate
amount of a court's time compared to other cases.2 After all, patents
handle the most cutting-edge technology; it follows that trying to
determine the facts of a patent case would take an inordinate amount of
time. How are a judge and jury-who more often than not lack technical
expertise in the relevant field-to determine whether an alleged infringer
actually infringes on a patent right? To make matters even worse, a current
lack of uniformity in patent law across jurisdictions means a
disproportionate reversal rate of district level decisions.3
Insufficient experience in patent litigation is an important issue because
the enforcement of patent rights is fundamental to encouraging innovation
in the American legal system. After all, innovation was so important that
* J.D. Candidate, University of Washington School of Law, Class of 2023. Thank you to Professor
Toshiko Takenaka for her guidance and review of this Comment. I am also incredibly grateful for the
wonderful Washington Law Review Online team, and in particular my editors: Ian, Anna, and Amy.
I could not have done this without everyone's help and support. I decided to go to law school to pursue
patent and IP law. That interest has led me to write this Comment.
1. Sapna Kumar, Judging Patents, 62 WM. & MARY L. REv. 871, 874 (2021).
2. See, Jay P. Kesan & Gwendolyn G. Ball, Judicial Experience and the Efficiency and Accuracy
of Patent Adjudication: An Empirical Analysis of the Case for a Specialized Patent Trial Court, 24
HARV. J. L. & TECH. 393, 410 (2011) [hereinafter Kesan].
3. See discussion infra Part III.
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