Patent reform legislation continues to be hotly debated, both in the public arena and before Congress. Federal Circuit Chief Judge Randall R. Rader recently said that Congress should leave reform to the courts, echoing comments by former Chief Judge of the Federal Circuit Paul Michel and Federal Circuit Judge Kathleen O’Malley. But business interests continue to press for action by Congress, consistent with efforts by the Executive branch and agencies to curb litigation abuse. While legislation continues to move forward (as summarized below), it remains unclear which (if any) of the proposals will be put to a vote, or in what form. Given the support of business, the Executive branch, various agencies, and various legislators, however, legislative action seems likely, notwithstanding the concerns expressed by the judiciary.

THE JUDICIARY WEIGHS IN -

On November 1, during a keynote address to the Eastern District of Texas Bench Bar Conference, Chief Judge Rader urged Congress to refrain from passing legislation aimed at curbing litigation abuse by patent trolls. Judge Rader seemed to recognize that the patent system currently faces a crisis in confidence, driven in part by patent trolls attempting to obtain settlements based on the cost of defense, rather than the merits. Judge Rader nonetheless indicated that he does not support a legislative solution, instead believing that judges are best-equipped to recognize and address litigation abuse. Judge Rader identified three ways in which the courts can address litigation abuse: (1) increased use of summary judgment to dispose of meritless cases; (2) increased discretion for district judges to determine which cases are “exceptional” and thus warrant an award of fees; and (3) decreased litigation costs, which provide the leverage for much litigation abuse.