By: Stuart P. Meyer


The interplay between the legislative and judicial branches in the area of patent law has become a tectonic collision. Congress appears to be ever more active in telling courts how to handle patent matters, and the courts are increasingly writing their own exceptions into the statutory language governing patents.

For several years now, Congress has been promising to address patent litigation abuse, but judges have expressed concern that this would be a land grab in Article III territory.  In 2013, Federal Circuit judges publicly warned that Congress was ill-suited to address litigation reform, and that any such attempts might encroach on the constitutionally enshrined power of the judiciary.  One judge chided a senior senator for saying that there were three branches of government: the executive, the House, and the Senate.  The judge devoted an entire keynote address to the topic of “how dismissive the other branches of government have become of the judiciary.”  She spoke of “the inherent authority of the courts to manage and control patent litigation” and criticized legislative proposals dictating when sanctions are to be applied and how much discovery should be allowed.  The Judicial Conference of the United States ultimately sent letters to the ranking members of the House Judiciary Committee in late 2013 warning that the proposed Innovation Act introduced by Rep. Goodlatte “runs counter to” the process set forth in the Rules Enabling Act. 

Continue Reading: The Power Play Between Congress and the Courts Over Patents