Tuesday, March 29, 2011

Jeanne Fromer: Patentography

Would stricter venue rules improve patent law? In Patentography (NYU L. Rev. 2010), Professor Jeanne Fromer (Fordham Law) argues that considering the "geography of patent disputes" by "making patent venue proper only in the district in which the principal place of business of any of a case's defendants is located" would help resolve complaints of (1) forum shopping, (2) poor district court performance in patent litigation, and (3) insufficient deference by the Federal Circuit. Her basic insight is that this venue restriction "will lead to a concentration of an industry's patent suits in the districts where that industry's firms are densest," so that most pharma suits will be in D.N.J., while software suits will be in N.D. Cal., D. Mass., and W.D. Wash.—and she argues that this industry-specific specialization by generalist courts would produce more reasoned opinions than specialized patent trial courts. I'm not sure that "patentography" is the clearest name for patent geography ("-graphy" refers to a writing or field, and patent attorney Mark Rosen made aborted efforts to define "patentography" along these lines), but Fromer presents an intriguing argument that taught me something new and made me rethink my views on specialized patent courts.

I particularly enjoyed Section III.B of the paper, which shows how all utility patent infringement cases filed in 2005 would have been distributed under Fromer's venue rule. Using data from the Stanford IP Litigation Clearinghouse (which I discussed here), Fromer shows that while technology clustering already exists, it would become more intense under her rule—see the pretty maps on pp. 1498-1505 and in the Appendix. Of course, Fromer's proposal strongly depends on her assumption that local judges and juries will "have a more robust understanding—both technically and economically—of a clustered industry or technology than judges and jurors in other places," which will lead to "[b]etter reasoned and grounded district court patent decisions" that are more deserving of Federal Circuit deference. This seems plausible, but so did the idea that technically trained district judges should do a better job construing patent claims. I'm not convinced that the effect would be as significant as Fromer suggests—but it also seems like the benefits, even if speculative, might outweigh the costs. As Fromer notes, technological clustering "would alleviate the tunnel vision that can plague specialist courts," and it might mitigate the pro-plaintiff bias of the current structure, such as the clustering of cases in the "notoriously patentee-friendly Eastern District of Texas" (Fromer addresses the concern that the bias might tilt too far toward defendants on pp. 1486-88).

Anyone interested in institutional patent reform—including those following the pilot patent specialization program for district judges—should definitely download and read this article. And as Fromer notes, her ideas also apply to other legal areas that "share patent law's pertinent characteristics of factual or legal complexities specific to particular industries or geographical areas."


  1. I read this Article when Fromer presented it at our IP Workshop last spring. I had some problems with it then - isn't it paternalistic to assume that trial judges can't understand patent disputes, and even if they can, is it advisable to shield them from such disputes instead of educating them? I'm curious to see how the piece has changed since last year.

  2. Thanks for the comment. I think it is undeniable that many district judges have trouble with technically complex patent disputes, and that many don't want them—see, for example, Peter Lee's recent YLJ article or the pilot specialization program mentioned in my post. (Though if you have evidence to the contrary, that could make an interesting piece itself!) Fromer's argument is basically that it is better to do the educating by having the same districts see the same technologies, rather than to try to teach all district judges about all technologies or to have certain district judges concentrate on patents in general. If you have a chance to read the article, feel free to comment again with your thoughts on how it has changed!