If You Can't Beat 'Em, Join 'Em? How Sitting by Designation Affects Judicial Behavior

34 Pages Posted: 14 Jun 2014 Last revised: 16 Feb 2016

Date Written: June 12, 2014

Abstract

Judges, lawyers, and scholars have long decried the high reversal rate district judges face in patent cases. Many have suggested greater district court specialization as a solution, and Congress in 2011 enacted legislation to promote such specialization. In this paper, we investigate the impact of a novel measure of experience – whether a district court judge has sat by designation on a Federal Circuit panel in a patent claim construction appeal – on the likelihood a district judge’s subsequent claim constructions are reversed. Before sitting by designation, judges who later do so actually have a slightly higher claim construction reversal rate than judges who never do so. After sitting by designation, the reversal rate of district court judges on subsequent claim construction appeals decreases by 50 percent. This decrease is not fully explained by other measures of experience, including the number of prior patent cases or years on the bench. Nor is it fully explained by the timing of the appeal, the particular district court judge or various other characteristics of the patents, the parties and the litigation. Our results suggest a simple way to reduce the reversal rate in patent and perhaps other sorts of cases. However, our evidence suggests this increased agreement is due to increased Federal Circuit trust in the decisions of individual judges who have sat by designation and not increased district judge understanding of claim construction.

Suggested Citation

Lemley, Mark A. and Miller, Shawn Patrick, If You Can't Beat 'Em, Join 'Em? How Sitting by Designation Affects Judicial Behavior (June 12, 2014). Stanford Public Law Working Paper No. 2449349. Available at SSRN: https://ssrn.com/abstract=2449349 or http://dx.doi.org/10.2139/ssrn.2449349

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Shawn Patrick Miller

Stanford Law School ( email )

Stanford, CA 94305
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
232
rank
129,356
Abstract Views
2,104
PlumX Metrics