A Study of the Role and Impact of Special Masters in Patent Cases
Jay P. Kesan
University of Illinois College of Law
Gwendolyn G. Ball
Institute for Genomic Biology, University of Illinois
April 2, 2009
Illinois Public Law Research Paper No. 08-23
This report is in response to a request from the Federal Judicial Center to perform a study of the use of special masters in patent litigation. The analysis is based on 116 patent cases terminated in 2005 and 2006 that were identified by the Federal Judicial Center as having involved special masters.
Our findings are as follows:
1. The individuals appointed as special masters are, on the whole, highly qualified with substantial legal experience and strong professional credentials. They are almost exclusively specialists in patent law.
2. The orders appointing special masters universally specify the scope of work of the master and usually describe how he or she will be compensated. However, the orders are less compliant with the other requirements of Federal Rule of Civil Procedure 53(b).
3. Special masters tend to be appointed in the most complex (i.e., long duration) of patent cases. These cases are the least likely to be resolved through a negotiated settlement and are among the most expensive and long-lived cases. Masters tend to be appointed after the case has already endured longer than the average case, suggesting that the court and parties have recognized the complexity of the issues at hand and seek expert help.
4. Special masters are most likely to be employed to oversee the discovery process or to conduct claim construction. They usually write a report recommending how to handle these issues. Sometimes they preside over the Markman hearing.
5. The reports and recommendations produced by the special masters are nearly always adopted by the court, usually with no modification.
6. The appeal rate among cases in which special masters were employed was comparable to that of the total population of patent cases, as was the reversal rate.
7. Since special masters are most often appointed in complex, long-duration patent cases, it is meaningful to compare the appeal rate and the reversal rate of special-master-appointed patent cases with other complex patent cases. The appeal rate among cases in which special masters were employed was half that of other complex patent cases. The reversal rate is also lower for patent cases with special masters when compared to the reversal rate for all complex patent cases.
8. The most common area in which special masters worked - claim construction - is less likely to be the subject of an appeal when compared to the appeal rate for claim construction in all complex patent cases.
working papers series
Date posted: April 3, 2009 ; Last revised: May 19, 2009
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