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

Judges, lawyers, and scholars have long decried the high reversal rate district courts 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 Article, we investigate the impact of a novel measure of a judge's experience with patent cases 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 over 50%. This decrease is not 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 might be thought to suggest a simple way to reduce the reversal rate in patent and perhaps other sorts of cases. But there is a catch: 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. Personal relationships, not learning patent law, seem to explain why the reversal rate drops.