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Intellectual Property, Commerce, & Technology

Intellectual Property in U.S. District Courts via Video

The Honorable William G. Young

Chief Judge, U.S. District Court, District of Massachusetts

The Fall 2001 Law Librarians of New England meeting, hosted by the Pappas Law Library of Boston University School of Law took place on Friday, November 2, 2001, at the Tremont Boston Hotel.

Video Link

Topics included : What will the field of intellectual property law look like in the 21st century? How will the changes in intellectual property law impact all areas of the legal profession?

LLNE News, Volume 21, Number 4, 2001 summarizes the presentation

Via tape, Judge Young discussed intellectual property in the federal district courts, including management issues and the use of technology in the courts. in terms of intellectual property in the courts, he noted that whether stated or not, the major battleground has been the jury trial. Today, the jury gets to resolve is only 2?3% of the cases filed. He warned us that we are in danger of losing functionally the right to trial and claims that this trend is most evident in IP cases. The complex nature of intellectual property cases causes people to pause to think whether a jury could resolve the case. In fact, we are one of the only countries that would let a patent case be tried as a right to jury. In the Makman case, the Supreme Court determined that the trial judge (U.S. district), not the jury, would construe the terms of a patent. Patent claims were written for one skilled in the art, so a judge must determine what one skilled in the art would understand the term to mean. Thus, the judge must accurately teach jury the construction (what that language means as a practical matter clearly and fairly). The majority of the federal circuit takes care in reviewing patent claims set forth by the judge; however, are we going to teach this technology to jurors when judges do not understand this material. He also mentioned Federal Rule of Evidence 702, which says to have expert data, the data must be beyond frontiers of average knowledge of the fact finder (such as accident reconstruction experts).

There are two major issues in IP: what are we going to try to jury trials or move away from the jury and how in a complex world are we able to separate reliable science and charlatans without stifling new science. He also noted that patent cases are not evenly spread throughout district courts, but are concentrated on a per judge basis. The Northern District of California is the busiest, followed by the District of Massachusetts and the District of Delaware.

He explained how he, as a judge, prepares for Markman hearings (i.e. what a patent means). First, he focuses on intrinsic evidence and does not take extrinsic evidence unless he is unable to understand from the intrinsic evidence. He raised the problem of how a judge determines between 2 diametrically opposed experts which one to believe. In fact, they are essentially deciding which side explained it better. He questioned whether they are supplanting the jury because if everything is resolved at claim construction point, there is little for trial. He raised the issue of whether too broad patent decisions are being embraced as a result.

Judge Young commented on new approaches evolving such as that taken by Judge Stearns. He tells both sides to select jointly one to three experts who could be hired as an extra clerk. Judge Young raised the real risks to such an approach, including the possibility that it abdicates the judicial function. He went on to discuss the various techniques involved. For example, an expert might read only the patent and the patent file (not the briefs, etc.). Also, when the expert advises, he might only answer the judge's questions regarding issues of interpretation and what text supports that. The judge can then go to those sources and confirm the explanation. Another option is to have no interaction with the expert and to have every interaction on record.

Young remarked on the high reversal rate (42%) of Markman decisions by the Federal Circuit and how patent cases are the slowest, most expensive litigation. He stated that he does not favor specialized courts because courts are primarily for society as a whole to have confidence (i.e. any step away from the jury means the denial of access to the courts). He also issued a plea to librarians to support electronic case management or paperless courts. He mentioned Donald Womak who created a searchable database. Court reporters in general could create a searchable database with everything in the district court. One could know how a court changes on an item, makes evidentiary rulings, etc.. Courts could thereby better serve the public because they could know with increased certainty variations judge by judge.

Biographical Data

Young, William G. Born 1940 in Huntington, NY

Federal Judicial Service

U. S. District Court, District of Massachusetts Nominated by Ronald Reagan on March 8, 1985, to a new seat created by 98 Stat. 333; Confirmed by the Senate on April 3, 1985, and received commission on April 4, 1985. Served as chief judge, 1999-present.

Education

Harvard University, A.B., 1962 Harvard Law School, LL.B., 1967

Professional Career:

U.S. Army Captain, 1962-1964

Law clerk, Hon. Raymond S. Wilkins, Chief Justice, Massachusetts Supreme Judicial Court, 1967-68

Private practice, Boston, Massachusetts, 1968-1972

Special assistant attorney general, State of Massachusetts, 1970-1972

Chief counsel to the Governor of Massachusetts, 1972-1974

Private practice, Boston, Massachusetts, 1975-1978

Associate justice, Superior Court of Massachusetts, 1978-1985

Lecturer in law, Boston College Law School, 1968-present

Lecturer in law, Boston University Law School, 1979-present

Lecturer in law, Harvard Law School, 1979-1990

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