The Local Rules of Patent Procedure

Megan M. La Belle

Catholic University of America (CUA) - Columbus School of Law

June 27, 2014

47 Arizona State Law Journal 63 (2015)

Congress, the Executive, and the Judiciary have all had "patent litigation abuse" on their minds recently. The concern is that too many frivolous patent suits are being filed and used to extract unwarranted settlements. The story is that bad actors — patent assertion entities (PAEs) or, more pejoratively, "patent trolls" — are suing small companies and end users for patent infringement even though PAEs make no patented products themselves. During the past year, Congress proposed close to a dozen bills aimed at curbing patent litigation abuse, the Executive took various anti-troll measures, and the Supreme Court decided a pair of cases that make it easier to shift fees based on patent litigation misconduct.

In the meantime, federal district courts have been addressing the patent litigation situation for years through procedural reform. Beginning in 2000, districts started adopting local patent rules to manage patent litigation. Today, thirty district courts in twenty different states have comprehensive local patent rules, and many more individual judges have adopted "local-local" rules that apply to patent cases in their courts. While commentators have generally lauded the efforts of district courts to manage patent litigation, the consequence is highly divergent patent practice from one federal district court to the next.

This Article is the first academic treatment of local patent rules to consider their effect both on patent policy and our federal system of civil procedure. It argues that the local patent rules movement undermines policies germane to patent law, particularly uniformity, and transgresses the trans-territorial and trans-substantive ideals of the Federal Rules of Civil Procedure. Yet, specialized procedural rules appear not only to be the current reality in patent litigation, but the inevitable future as well. The Article therefore proposes the promulgation of a national set of procedural rules to govern patent litigation — the Federal Rules of Patent Procedure — which will borrow from and be shaped by the local patent rules experiment.

Number of Pages in PDF File: 62

Keywords: patents, local rules, patent litigation abuse, Federal Rules of Civil Procedure, patent procedure, Federal Circuit, patent rules, patent reform, Innovation Act

Open PDF in Browser Download This Paper

Date posted: June 27, 2014 ; Last revised: May 18, 2015

Suggested Citation

La Belle, Megan M., The Local Rules of Patent Procedure (June 27, 2014). 47 Arizona State Law Journal 63 (2015). Available at SSRN: https://ssrn.com/abstract=2459785

Contact Information

Megan Maureen La Belle (Contact Author)
Catholic University of America (CUA) - Columbus School of Law ( email )
3600 John McCormack Rd., NE
Washington, DC 20064
United States

Feedback to SSRN

Paper statistics
Abstract Views: 747
Downloads: 114
Download Rank: 193,141
Paper comments
No comments have been made on this paper