Intellectual property has experienced an explosion in recent decades as the value of American corporations has become increasingly reliant on intangible assets.  This explosion is reflected in the massive increase in patents issued by the United States Patent and Trademark Office (“USPTO”)  and the corresponding spike in patent litigation.  Moreover, patent litigation has become a high stakes game  that is time consuming and unpredictable.  Faced with a system of patent litigation that most people agree is too expensive, too time-consuming, and too unpredictable,  plaintiffs frequently attempt to capitalize on their virtually unencumbered choice of venue to shop for the best district courts to file their suits.  This environment has destabilized the patent system, and reforms are needed to restore fairness, efficiency, and certainty in patent litigation.
This article will begin by providing a background of patent jurisdiction, forum shopping, and claim construction. Next, the article will explain the most prominent proposals for improving patent litigation. The article will then critically analyze these theories and conclude that greater efficiency and predictability could be achieved through improvements at the USPTO, adopting expedited procedures, designating certain judges to hear patent cases, and giving district court claim constructions greater deference on appeal….
Kevin A. Meehan