Balkanization of the Local Patent Rules and a Proposal to Balance Uniformity and Local Experimentation
Since their genesis in 2001 in the Northern District of California, local patent rules have gained traction in an impressive number of district courts. However, as more courts have adopted local patent rules, significant variations have emerged. This article argues that the extent of variation between the local patent rules has created problems of balkanization and disuniformity. Yet at the same time, the variation has also facilitated local experimentation and innovation in the local patent rules. This article proposes a system that strikes a balance between uniformity and local experimentation. This proposal is informed by the history of the Civil Justice Reform Act of 1990 (“CJRA”), which sought to reform civil procedure through different local rule experiments in all ninety-four district courts across the nation. Looking back at the CJRA, it is apparent that the localized experiments needed strong central control to manage the overall scheme of experimentation. Thus drawing from the lessons of the CJRA, this article proposes the creation of a central agency for patent procedure, which will maximize the benefits of local experimentation, minimize the harms of balkanization and disuniformity, and create a favorable balance of uniformity and local experimentation.