2002 UCLA J.L. & Tech. 1

Untangling The Tangled Web: Federal Court Reform Through Specialization For Internet Law And Other High Technology Cases
by LeRoy L. Kondo*

I. INTRODUCTION: THE TANGLED WEB OF COMPLEXITY IN A HIGH TECHNOLOGY WORLD

The Internet's unprecedented explosive growth, 1 favorably compared to that experienced during the Industrial Revolution, has created a “tangled web” of legal and scientific complexity that has far outpaced the judiciary's ability to manage these cases. 2 Exponential growth in this decade is also occurring in numerous high technology fields such as computer science, biotechnology, telecommunications, and engineering specialties. 3 Such technological achievement is essential to the integrity of the world's economy: In the Internet e-commerce arena alone, sales mushroomed to over $102 billion in 1998, with predictions that by 2003, e-commerce sales to consumers could well reach $400 billion. 4 Similarly, business-to-business e-commerce was anticipated to grow exponentially over tenfold, reaching $1331 billion in 2003. 5

The judicial system has been perplexed in the face of the extraordinary and unique complexities introduced by novel technologies and scientific breakthroughs. Judge Friendly and Judge Learned Hand were harbingers advocating court reform as a paradigm shift within the judiciary, as they predicted the occurrence of the current dilemmas posed by the modern technological age. For example, Judge Friendly observed that the tremendous complexity in intellectual property law challenges a generalist judge's 6 comprehension and capabilities. He noted, "courts must. . . deal today with a great number of patents in the higher reaches of electronics, chemistry, biochemistry, pharmacology, optics, harmonics, and nuclear physics, which are quite beyond the ability of the usual judge to understand without the expenditure of an inordinate amount of educational effort by counsel and of attempted self-education by the judge, and in many instances, even with it." 7

Judge Friendly's commentary regarding the limitations of federal judges echoed the words of Judge Learned Hand almost a century ago, when he observed that generalist courts were ill-equipped to decide complex technological issues:

I cannot stop without calling attention to the extraordinary condition of the law which makes it possible for a man without any knowledge of even the rudiments of [science and technology] to pass upon such questions as these. The inordinate expense of time is the least of the resulting evils, for only a trained [scientist] is really capable of passing upon such facts. . . . How long we shall continue to blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some such advance. 8

More recently, Judge Michel observed, "it seems likely that society at large, not to mention the business community, will be less tolerant of any inconsistent or possibly unsound adjudications by general adjudicators handling highly complicatedmatters of great economic importance with widespread practical consequences." 9 He predicted that Congress might soon respond to pressures from the business community and from other countries to implement increased specialization within the Federal Circuit or other federal courts. 10 Corporations with enormous economic stakes in high technology races impose pressures on the legal system to transform itself, posing special challenges that promise to shift the boundaries and contours of intellectual property law.

Judge Learned Hand stated his prescription for the generalist court’s predicament:"No one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes. The only question is as to how it can do so best." 11 He observed that courts historically have frequently and justifiably "summoned experts to help it where its knowledge was lacking," particularly where required "to help it out of its difficulties." 12 Nevertheless, the court’s simplistic deployment of experts in times of need may serve merely as a partial “band aid” remedy to the serious challenges against the integrity of our judicial system.

The federal judicial system has experienced difficulties in reaching uniform and just decisions in Internet and other technologically complex cases. 13 Most intellectual property disputes are decided by generalist judges and juries in U.S. District Courts with perhaps insufficient understanding of the technological and societal complexities raised by such cases. 14 The only federal court that specializes in intellectual property cases is the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit” or “CAFC”), a semi-specialized court with subject matter jurisdiction over patent, trademark, U.S. International Trade Commission, and other cases. 15 While currently only three of the twelve CAFC judges have technical backgrounds, the bench obtains intensive practical exposure to technologically complex cases through the large proportion of intellectual property cases on its calendar. 16

As a semi-specialized tribunal, the CAFC provides some guidance to district courts, the Patent and Trademark Office ("PTO"), and U.S. corporations, through published judicial opinions.Perhaps counterintuitively, the Federal Circuit, as a semi-specialized court, reviews the technical finding decisions of generalist district court. This specialist appellate court review of generalist trial court court decisions runs contrary to the generally accepted judicial principle that appellate courts should focus on significant societal policy interests in adjudication rather than becoming mired in the intricacies of factual determinations. 17 Consequently, the Federal Circuit’s appellate decisions may sometimes “miss the mark” through oversimplification of issues or failure to consider broader societal or socioeconomic implications.

The problem results, in part, from the divergence of science and law, where scientists familiarize themselves with hypotheses, data, and the scientific method, whereas judges and lawyers attune themselves to the world of laws, policies, and the application of legal principles. While the scientist's goal is to strive toward learning the scientifically verifiable and perhaps immutable objective truths of the universe manifested as laws of nature, 18 the lawyer's goal, in contrast, is to subjectively persuade the court or jury of the superiority and justness of his client's cause. 19 The American legal system, founded upon the adversarial theory that "if you set two liars to exposing each other, eventually the truth will come out," 20 may not be conducive to a judge’s committed search for understanding.

A principal problem also lies in the technical complexity of the subject matter of intellectual property matter itself—where inventions, by definition, must satisfy a novelty requirement. Senator Patrick J. Leahy observed, "I believe that patent law stands apart from virtually every other legal discipline both in its extreme focus on science and technology and its need for uniformity in decision-making." 21 Federal judges and juries, with the notable exception of the Federal Circuit, generally lack the scientific expertise arguably necessary to comprehend and decide highly technical intellectual property cases such as those in Internet law. 22 Professor Kenneth Dueker states: "It is unreasonable to expect judges to be experts in the field of computer science as parties wrangle over the mechanics of the Internet." 23 Yet, the United States Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, Inc., held that under Federal Rule of Evidence 702, 24 "[T]he trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." 25 This mandate allows courts to appoint experts such as expert witnesses, technical advisors, and special masters to help them meet their responsibility. 26

Chief Justice Rehnquist said that judges should not aspire to become members of a new generation of "amateur scientists." 27 He emphasized the importance of their "gatekeeping" role in admission and evaluation of scientific evidence, routinely encountered in cases dealing with intellectual property inventions. 28 Of course, balance is required, and judges should not shirk their responsibilities through over-delegation of their judicial decision-making responsibilities to technical or scientific experts who may have a clearer understanding of complex technical issues. 29

However, the “tangled web of technological complexity” has ensnared most of the generalist federal judiciary, in spite of the Supreme Court’s commendable objectives expressed in Kumho Tire and Joiner. The Internet and associated computer technologies create special challenges for judges, legislators and the entire legal system because of their unique differences from other prior forms of communication. 30 For example, the Internet has posed novel issues in copyright law relating to electronic data and transmission through cyberspace. Judge Coffman lamented that such challenging questions presented by new technologies creates "a legal problem vexing in its difficulty, [with] a dearth of squarely applicable precedents … seem[ing] inexplicable, and an almost complete absence of guidance from the terms of the Copyright Act." 31 Technological advances often far outpace established law and legal doctrine.

Judge Michel states his perception of the need for court reform within the federal judiciary for intellectual property cases as follows:

I have developed a strong sense that litigators, as well as a very large portion of the client base, consider the status quo to be significantly unsatisfactory. I am also sensitive to criticism that appears in academic commentary and in analyses done by experts that raise serious questions about whether the U.S. system of civil justice is not unduly slow, disruptive, expensive, and unnecessarily unpredictable. Therefore, if I have a bias, it is that the current practices are significantly unsatisfactory, and, therefore, major reforms should be considered and tried, at least on a pilot basis. (emphasis added).

Michel, Review of Federal Circuit Decisions, supra note 9, at 1203.

This article proposes that the “tangled web” of legal and scientific complexity experienced in the aftermath of explosive technological growth in this new millennium may be “untangled,” at least in part, through court reform by implementing policies of increased specialization within the judiciary. Part II discusses the current structure of adjudication in intellectual property cases. Federal jurisdiction is dominant in these areas, thus district courts, the Court of Appeals for the Federal Circuit, the Court of International Trade (as an Article III court), and the Patent and Trademark Office (as an Article I administrative court) are the primary focus. The Internet Corporation for Assigned Names and Numbers (“ICANN”), an independent administrative panel, is also briefly discussed.

Part III presents various policy arguments for and against increased specialization within the federal judicial system. Topics for discussion include (1) the specialist/generalist court debate over increased specialization within the judiciary; 32 (2) the effects of specialization within the federal court system on uniformity, determinancy, accuracy, precision, and predictability of judgment--with particular focus placed upon the Federal Circuit, a stabilizing semi-specialized tribunal; (3) criticisms of the Federal Circuit and federal courts for indeterminancy due to "panel dependency," doctrinal vagueness in claim interpretation, and inexperienced lay jury panels; (4) the impact of specialization in prevention of forum shopping through the uniformity of nationwide application of intellectual property law; (5) judicial efficiency and economy resulting from specialization in attempts to relieve the crisis in volume plaguing the federal courts; and (6) the effects of a more specialized judiciary on the protection of American business interests, promotion of research and development, with discussion of countervailing policy considerations.

Part IV explores potential models for federal court reform through increased specialization. This Part discusses (1) the court’s appointment of technical or scientific advisors, experts, special masters, and magistrates; (2) the increased use of specialized judges for intellectual property and other complex scientific or technical cases, (3) the establishment of specialized divisions within the federal courts, and (4) the potential deployment of “blue ribbon” expert juries or educated juries used to resolve complex issues of fact.

Finally, Part V provides concluding remarks that the challenge of complexity threatening to engulf the federal judicial system in high technology arenas may be met, at least in part, by increased specialization within the judiciary. Building upon the successes of the Federal Circuit as a "clear experiment" 33 in court reform, this article advocates the increased deployment of specialist judges, technical advisors, scientific expert witnesses, "blue ribbon" expert jury panels, specialist federal high technology judiciaries, or other approaches to provide the specialization required to meet the judicial challenges of the future.

II. CURRENT STRUCTURE OF THE FEDERAL COURTS AND AGENCIES IN DECISIONS REGARDING INTELLECTUAL PROPERTY CASES AND THE GROWING NECESSITY FOR COURT REFORM

Congressional authority for the creation of the federal courts is provided by Article III of the United States Constitution. 34 In addition, Congress has used its Article I powers to create administrative agencies or tribunals with adjudicative responsibilities. 35 This part of the article provides a brief overview of the federal court system, including existing specialty tribunals that hear intellectual property cases. It also presents initial discussion demonstrating the growing need for increased specialization in the federal judiciary.

A. Article III Courts

Litigation of major Internet law disputes, as in most intellectual property cases, occurs primarily in U.S. District Courts with the potential for review by the Federal Circuit or other courts of appeal, depending on the particular issues involved. 36 Although the United States Supreme Court wields the theoretical power to hear and decide cases appealed from the Federal Circuit or, more rarely, from District Courts, the Supreme Court has infrequently chosen to interfere with the Federal Circuit's decisions. 37

Article III, § 1 of the United States Constitution states, "The judicial Power of the United States, shall be vested in one supreme court, and in such inferior Courts as the Congress may from time to time ordain and establish." 38 Since Article III, § 2, d.1 provides the Supreme Court with original jurisdiction only "[i]n all Cases affecting Ambassadors, other public Ministers and Consuls; and those in which a State shall be Party," 39 this section implies that Congress must necessarily create lower federal courts for complete exercise of judicial power. 40 Congress created the first tier of lower federal courts, the district courts, which President George Washington signed into law as the Judiciary Act in 1789. 41 A century later, a second tier of federal courts, the courts of appeal, was added by the Evarts Act. 42

1. United States District Courts

Congress has granted exclusive jurisdiction in patent law cases to the U.S. District Courts. 43 These lower federal courts, staffed by generalist judges and lay juries, resolve a large proportion of significant intellectual property disputes. 44 In contrast, both litigation and prosecution attorneys involved with patent law issues almost invariably specialize in their areas of expertise. 45 While litigation lawyers may lack technical backgrounds and are not required to register as "patent attorneys" with the Patent and Trademark Office ("PTO"), many of these litigators have become "specialized in fact,” with a virtually exclusive focus upon patent practice in the representation of clients before the federal courts. 46 Patent prosecution attorneys or patent agents, with technical backgrounds, generally prosecute patents virtually exclusively before the PTO. 47

In view of the practical necessity for deploying specialized litigation and patent prosecution lawyers to argue intellectual property cases, one could maintain by analogy that specialist district court judges should also possess greater expertise or understanding necessary to rightly decide technologically complex cases than current generalist judges. The Advisory Commission on Patent Law Reform, in acknowledging a need for greater specialization at the lower court level, proposed several solutions in court reform. 48 The Commission supported the following proposals: (1) appointment of specialized judges possessing experience in patent cases to a newly created special branch of federal district courts, (2) placement of an "expert" judge, with expertise in patent law, in every district court, and (3) restriction of the number of district courts with jurisdiction to hear patent cases. 49

Judicial expertise in patent law is particularly critical in "Markman" hearings where district court judges resolve disputes concerning claim interpretation 50 as matters of law. The judge’s interpretations of patent law claims are often dispositive in the jury's subsequent determinations regarding potential infringement. 51 Thus, district court reformers may reasonably consider proposals for increased specialization in reforming the first tier of our fundamental federal court system. While perhaps more radical than other proposals for specialization to be discussed, reformation at the district court level has the advantage that a specialized district court judge, as fact-finder, could possess adequate knowledge to effectively resolve complex matters at the interface of science and law.

2. The Court of Appeals for the Federal Circuit

a. the Federal Circuit's Semi-Specialized Subject Matter Jurisdiction

In contrast to the generalist nature of the U.S. District Courts and courts of appeal, 52 the Court of Appeals for the Federal Circuit (“Federal Circuit” or “CAFC”) is a semi-specialized court with subject-matter jurisdiction, 53 rather than geographical jurisdiction, over intellectual property cases (e.g., patent, trademark), U.S. International Trade Commission cases, and Federal Tort Claims Act, among others. 54 The CAFC hears all appeals from the PTO and district courts involving intellectual property cases, typically serving as the “court of last resort” for intellectual property cases. 55

The Federal Circuit was created by the Federal Courts Improvement Act of 1982. 56 When established, the CAFC was unique--as the only Article III appellate court in existence with nationwide subject matter, rather than geographical, jurisdiction. The Federal Circuit has exclusive jurisdiction over PTO appeals for both patent denials and interference proceedings. 57 Unsuccessful inventors or assignees who have been denied patents and litigants who have lost in interference proceedings may wish to appeal PTO decisions to the Federal Circuit. Proponents of a more specialized intellectual property tribunal maintain that the Federal Circuit's mere "semi-specialized" status in hearing patent law cases among others in its mixed subject matter jurisdiction prevents the CAFC from achieving its full potential.

Correspondingly, Judge Howard Markey, previous Chief Judge of the Court of Customs and Patent Appeals (CCPA), the precursor to the Federal Circuit, observed, "The Court of Appeals for the Federal Circuit is obviously less specialized. . . than either of the two courts it consolidates. . . since. . . we will continue all of our present jurisdiction plus." 58 The Federal Circuit judges, appointed by the President with Senate advice and consent, 59 are primarily generalist judges, with only three current judges having any formal degrees in science. 60 Since Federal Circuit judges are usually not registered patent attorneys, they may also be subject to the same criticisms of generalist judges in district and appellate courts discussed further in Part III.A.

b. The Federal Circuit's Impact On Patent Law Policy Transformation And The CAFC's Role In Protection Of United States' Business Interests

Notwithstanding its lack of specific expertise, the Federal Circuit has significantly advanced the delineation of patent law doctrine over the past three decades, due, at least in part, to its semi-specialized jurisdiction and focus. Some commentators maintain that the Federal Circuit has been "patent friendly" in defining this area of law, 61 supporting protection of the United States' business interests. For example, under 35 U.S.C. § 101, the CAFC has utilized its semi-specialized insights into patent law's "metes and boundaries" to expand statutory subject matter to include computer software programs, 62 living organisms, 63 and business methods, defined as "processes." 64 Such broadening of statutory categories by the Federal Circuit for patentable subject matter have served as the foundation upon which corporations have built the major pillars of novel computer software technologies, biotechnology developments, and business methods.

This CAFC policy shift contrasts with the federal courts’ historic failure in patent law to adequately protect the interests of the United States' semiconductor industry, leading to Japan’s dominance of this field in the 1980s. 65 Thus, the "experiment" 66 of the Federal Circuit as a semi-specialized court of appeals for intellectual property cases has apparently succeeded if success is measured in terms of protecting U.S. technology and business interests through such modes as expanding the categories of patentable subject matter.

In part, the Federal Circuit's semi-specialization in patent law has permitted that court to conduct detailed analysis of Bonito Boats' finely crafted bargain. The Supreme Court's Bonito Boats mandate is to achieve the proper balance between promoting industry’s business interests in the protection of valuable intellectual property rights, on one hand, and advancing the public’s interests in free access to information and societal objectives, on the other. 67 The Supreme Court and commentators note the success of the Federal Circuit in meeting both judicial substantive and procedural efficiency objectives, particularly in providing uniformity, order and predictability to a complex body of law. 68

c. The Supreme Court's Deference To The Federal Circuit's Semi-Specialist Court Decisions

Over the past quarter century, the U.S. Supreme Court has implicitly given the Federal Circuit its “vote of confidence” in resolving complex technological issues by rarely granting certiorari to hear patent or trademark cases. The Supreme Court, staffed by generalist justices, may hesitate to decide technologically difficult cases perhaps in part because of its unfamiliarity and discomfort with the world of high technology. Regardless of the underlying rationale, the Court has rarely intervened in intellectual property case decision-making by the Federal Circuit in spite of the enormous societal impact of high technology on economic policies affecting corporate business interests. In the period from 1945 to 1980, the U.S. Supreme Court denied certiorari in all but one patent case--and this was a case where the Court chose to resolve a circuit conflict. 69 Yet the Hruska Commission justified the Supreme Court’s acquiescent role by presenting an idealized view of the Supreme Court’s function in continuing to establish “national policy in the area of patent law as in other areas of federal law,” without the necessity of performing “a monitoring function on a continuing basis in this complex field.” 70 However, the Supreme Court apparently has only infrequently fulfilled this ostensible panoramic “monitoring function” 71 in high technology intellectual property cases.

Correspondingly, the Federal Circuit was established to provide uniformity in the application of intellectual property law, 72 prevention of forum shopping among federal courts, 73 and specialized expertise in a complex body of law. 74 Consistent with this historic trend, since 1980, the Supreme Court has chosen to resolve only a few select patent issues. 75 Thus, the Supreme Court, through its inaction in denying certiorari to intellectual property cases, has permitted the Federal Circuit to become, in essence, the de facto "court of last resort" for patent cases, in major part because of its "semi-specialized" understanding of this complex body of law. 76

Support for the Federal Circuit's expanded jurisdiction over intellectual property cases was documented by the White Commission, chaired by retired U.S. Supreme Court Justice Byron R. White. In 1998, the White Commission analyzed the workings of the federal appellate courts with an eye toward court reform. 77 The Commission noted that a significant increase in the Federal Circuit's jurisdiction over intellectual property cases was supported by academic scholars; but the Commission generally remained silent on whether it would support such a delegation of authority to the CAFC. 78 However, the Commission briefly discussed the option of placing copyright cases within the Federal Circuit's jurisdiction, transferring them from regional circuits and complementing the CAFC’s existing intellectual property jurisdiction over patent and trademark cases. 79

Most commentators recognize that the Federal Circuit has already provided some degree of uniformity and predictability to the area of intellectual property law. 80 However, further Federal Circuit specialization through the appointment of specialist judges with demonstrated legal and technical expertise in this field has been advocated to provide the CAFC with the tools necessary to accelerate transformation in this area of law to keep pace with innovative breakthroughs occurring in this technological age. 81

3. Other Specialized Article III Courts

a. The Court Of International Trade

The United States Court of International Trade (“CIT”) is a specialized court that was fundamentally transformed by the Customs Courts Act of 1980, 82 from its original Article I status as the United States Customs Court 83 to its current Article III status. The historical roots of this court extend back to 1890, when Congress first formed the Board of General Appraisers, a Department of Treasury administrative agency. 84 The Customs Court responsibilities were originally more generally circumscribed and "directed to the execution of one or more such powers. . . prescribed by Congress." During the transformation from Article I to Article III status, CIT functions, jurisdiction, and powers were expanded in roles consistent with the Article III judiciary's "structure, organization, and procedure." 85

Within Federal Circuit's appellate jurisdiction, the CIT also employs full-time, specialized, and life-tenured Article III judges to serve on the bench. 86 The provision of life tenure is significant to advocates of increased specialization because it permits judges to develop expertise while on the bench and to provide stability to an increasingly complex body of international trade law, 87 obtained through congressional court reform. 88

b. Semi-Specialist Courts

Semi-specialized Article III federal courts, 89 staffed by part-time generalist judges 90 include the Temporary Emergency Court of Appeals, 91 the Special Court hearing railroad property matters, 92 the Foreign Intelligence Surveillance Courts, 93 and the federal district court division that appointed prosecutors under the Ethics in Government Act. 94 Such semi-specialized federal courts, perceived as combining the best of both worlds—the "panoramic viewpoints" of generalist courts and focused comprehension of specialized courts—have been utilized historically to address specific issues confronting the government.

B. Article I Administrative Courts: Authority of Agencies and the Patent and Trademark Office

1. General rule-making and adjudicative authority delegated to agencies under Article I

Article I of the U.S. Constitution empowers Congress to establish specialized legislative tribunals, often referred to as "agency or Article I courts." 95 Under Article I, Congress may delegate rule-making and adjudicative authority to administrative agencies that specialize in statutorily defined areas of law. Representative administrative agencies created under Congress’ Article I power include the Environmental Protection Agency (EPA) and the Occupational Safety and Health Review Commision (OSHRC). 96 Judicial authority for Congress' establishment of agencies, as "legislative courts," was supported by Supreme Court decisions in Northern Pipeline Construction Co. v. Marthon Pipeline Co. 97 and Commodity Futures Trading Commission (CFTC) v. Schor 98 that circumscribed the limits of Article I agency tribunal powers. In Northern Pipeline, the Supreme Court plurality held that while it was Article III’s “inexorable command” that United States judicial power be placed only in judges with both life tenure and salary stability, 99 legislative courts and administrative tribunals could be created in accordance with “the exceptional power[] bestowed upon Congress by. . . historical consensus.” 100

Legislative courts or agencies are vested with authority to formulate rules and adjudicate cases based upon their specialized expertise. 101 Agencies were established to fill the interpretative void of legislative enactments to fulfill congressional intent in specialized areas of law. Agency interpretations of a statute are generally given "controlling weight" upon judicial review by an Article III court as long as it is reasonable, rather than "arbitrary, capricious, or manifestly contrary to statute." 102 Appellate courts generally uphold agency decisions in about 70-75% of cases. 103

Article I decisions are generally subject to judicial review by Article III courts. However, decisions by Article I courts or agencies, as adjudicative bodies, are often given some degree of deference by the courts. 104 Thus, federal courts generally support decisions by Article I agencies or courts, such as the PTO, unless these decisions are held to be “arbitrary and capricious,” 105 not supported by “substantial evidence,” 106 or an “abuse of discretion.” 107

2. General Functions of the Board of Patent Appeals and Interferences of the PTO as an Article I Tribunal

The Board of Patent Appeals and Interferences of the PTO ("Board") operates functionally as a specialized Article I tribunal when it hears patent cases, such as those relating to the patentability of inventions, interference or priority proceedings, and other related issues. The PTO, a division of the Department of Commerce, 108 employs over three thousand patent examiners, reviews over two hundred thousand applications annually, and issues over one hundred thousand patents per year 109 in compliance with over three hundred pages of regulations promulgated by this agency in accordance with its congressional mandate. 110 The PTO’s principal focus is in issuance of patents and trademarks, 111 hiring and deploying expert scientists specialized in the subject matter of various scientific disciplines. 112 However, the PTO, through its Commissioner and Board, secondarily may re-examine patent validity, 113 declare an interference, 114 or consider reissue of a patent. 115 Thus, the specialized scientific expertise of the PTO Board, as a legislative tribunal, permits it to make pertinent decisions based on relatively established technical/legal grounds. 116 While the Federal Circuit reviews PTO Board and Commissioner decisions de novo, 117 practicing patent attorneys may consider such PTO administrative and adjudicative proceedings as practical alternatives to conventional patent litigation relegated to the federal courts.

3. The Supreme Court’s Dickinson Decision Shifted Decision-making Power From the Semi-specialized Federal Circuit to the PTO, A Specialized Agency

In Dickinson v. Zurko, the Supreme Court shook the foundations of the patent world by holding that the review of PTO decisions by the Federal Circuit should be under the Administrative Procedure Act's ("APA's") “court/agency” standard articulated previously, 118 rather than under the “court/court” clearly erroneous standard under the Federal Rules of Civil Procedure. 119 One principal effect of the Supreme Court’s holding in Dickinson is that the semi-specialized Federal Circuit must now give greater deference to PTO findings and decisions, as a specialized Article I agency.

Some supporters of Dickinson maintain that the PTO, with its superior expertise in intellectual property law and mastery of factual inquiry, should justifiably be empowered with greater decision-making authority than the Federal Circuit, which is primarily composed of generalist judges without technical training. 120 PTO proponents, which often include the Patent Bar and American Bar Association, argue that heightened PTO authority would encourage America's investment in research by supporting the PTO's policy of patent protection of technologies. Conferring Article III status upon the PTO might aid in meeting these policy objectives. 121 In contrast, opponents maintain that the Federal Circuit, with its exclusive grant of subject matter jurisdiction in intellectual property arenas, possesses the greater expertise and broader understanding of legal principles. 122

Nevertheless, with the Supreme Court in Dickinson defining today's judicial standards in intellectual property law, the balance of power has tilted toward greater authority vested in the more specialized PTO, as an administrative agency composed of technical experts, to determine the patentability of inventions. 123 Certainly, the PTO's scientific expertise is vastly superior to that existing in any federal court today, perhaps even including the Federal Circuit. It is not surprising that the Federal Circuit, a semi-specialist court, has experienced some apparent difficulty in adjudicating complex technological cases. Moreover, since intellectual property is, by definition, novel--distinguishable in claims from any prior inventions-- the Supreme Court's Dickinson decision could be perceived perhaps as a rational “vote of confidence” in the specialist PTO agency's competence in making the difficult determinations concerning patentability of inventions. Even some Federal Circuit judges, such as Judge S. Jay Plager, support greater deference to the PTO as an expert administrative agency. 124 While appointment of specialist judges to the Federal Circuit or, alternatively, the CAFC's greater use of technical advisors in the future might remedy the Federal Circuit's lack of expertise, consistent with the goals of the Federal Courts Improvement Act that created the CAFC. 125 However, until greater specialization at the appellate level occurs through court reform, the constitutional mandate for "[promotion of] the Progress of Science and useful Arts" 126 might be best served by the Supreme Court's holding in Dickinson to ensure that greater decision-making authority is vested in the PTO.

C. The ICANN Forum for Domain Name Alternative Dispute Resolution—An International Specialized, Pseudo-Judicial/Administrative Regulatory Body

The Internet Corporation for Assigned Names and Numbers ("ICANN") was created in 1998, as a result of U.S. Department of Commerce support, to organize and provide rules for the Internet domain name system. 127 The U.S. government founded ICANN as a prototypic private "court" with voluntary participation; however, once participants have agreed to register with ICANN and fall under this body's rubric, ICANN's contracts and decisions are binding. 128 Under ICANN’s Uniform Dispute Resolution Policy, ICANN requires that domain name holders submit to ICANN-administered arbitration proceedings. 129 At present, ICANN has authorized four approved dispute resolution providers: the World Intellectual Property Organization ("WIPO"), the National Arbitration Forum ("NAF"), the CPR Institute for Dispute Resolution ("CPR"), and eResolution ("eRes"). 130 Trademark owners have preferred to utilize the WIPO because its panelists consist of attorneys or professors specializing in trademark law, in contrast to the NAF’s generalist judge panel. 131 According to ICANN's Registrar Accreditation Agreement, ICANN can prevent registration by those refusing to follow the UDRP. 132

Thus, ICANN and its dispute resolution arbitration panels may function as pseudo-judicial or pseudo-administrative regulatory bodies. ICANN effectively utilizes its authority and URDP policies to resolve domain name disputes at low cost and within a short two-month time frame. 133 Procedurally, the complainant submits a complaint to one of the approved administrative dispute resolution providers, 134 then chooses either a one or three person panel for arbitration. 135 ICANN decisions may be appealed to the courts, 136 with ICANN implementing the court's decision. 137

ICANN’s arbitration panels, while privately formulated under the UDRP, operate as public "court-like" entities with at least a semblance of (1) open board meetings and proceedings, (2) representation by a Board through consensual judgments, and (3) due process rights including notice, an opportunity to be heard, and access to appeal procedures. 138 Yet ICANN's Internet dispute resolution authority may be transient because, as noted in the WhiteCommission’s analysis: (1) the United States may be reluctant to maintain ICANN's role as the Internet's economic value increases, (2) the need for business competition in domain name registration becomes more apparent, and (3) some consensus regarding a replacement managerial administrative or judicial structure is obtained. 139 Thus, national or international courts or administrative agencies may be considered as reasonable alternative forums to ICANN panels in resolving domain name disputes.

Notwithstanding the benefits of ICANN's alternative dispute resolution ("ADR") panels in resolving Internet law and other complex high technology cases, Professor Stempel notes that "courts appear to continue to be distinctly more competent as the default option for adjudication than their current competitors—broad-based legislation, administrative agencies, arbitration, mediation, and variant hybrids." 140 While generalist district and appellate courts in their current form may exist as imperfect forums for the adjudication of complex technological issues in comparison to administrative agencies (e.g., PTO for patent and trademark issues) or private administrative bodies (e.g., ICANN for Internet trademark law), 141 courts should remain the preferred default decision-maker in these cases relative to other alternatives. Generalist federal courts may consider increased specialization to achieve higher levels of comprehension and competency in deciding complex high technology cases. 142

III. POLICY CONSIDERATIONS IN SUPPORT OF INCREASED SPECIALIZATION IN THE FEDERAL JUDICIARY SYSTEM

With the recent successes achieved by the semi-specialized Federal Circuit and the specialized PTO in advancing “Progress in Science and the useful Arts,” the tide of public and legal opinion has shifted dramatically over the last two decades towards support for increased specialization in the judiciary. 143 This part of the article discusses various policies relating to increased specialization in the federal judiciary. These policies include: (1) utilization of specialist rather than generalist adjudicators; (2) uniformity and greater predictability of judgment, with concomitant stabilization of jurisdictional and choice of law discrepancies among courts; (3) prevention of forum shopping; (4) increased judicial efficiency and economy; and (5) protection of business interests, promotion of corporate research and development, and patent disclosure of inventions to the public.

A. The Specialist Court vs. Generalist Court Debate

1. Specialist vs. Generalist Courts

Tremendous controversy has historically existed and still exists today among judges, academic scholars, legislators, and lawyers regarding whether increased specialization within the judiciary would be beneficial. This part of the article addresses the following issues: (1) the lack of prestige characteristic of some specialist courts, (2) arguments that specialized judges have “myopic” focus, (3) criticisms that specialized courts may be particularly susceptible to special interest group manipulation, and (4) a reply to the suggestion that generalist judges may readily become self-educated to adjudicate technically or scientifically complex cases.

a. Addressing the Lack of Prestige Characteristic of Some Specialist Courts

Opponents sometimes note that specialist courts, being less prestigious, would be unable to attract the most highly qualified judges to the bench, resulting in an inferior body of specialized law. 144 Since federal courts have historically deployed primarily generalist judges, and since specialized judges have primarily resided in state courts (e.g., family court, drug court) having lower status and compensation, specialization has been unfairly stigmatized as being inferior. However, conceptually, a specialized judge is no more inferior to a generalist judge than a specialist in neurology is inferior to a general practitioner in medicine. In fact, in the medical field, specialists are often considered more prestigious than generalists, drawing higher compensation for their expertise.

Societal perceptions of the prestigiousness of judicial positions are a product of political power and economic support that serve as the foundations of the current judicial system. Thus, increased specialization in the federal judiciary by appointment of more Article III specialist judges, with lifetime tenure and concomitant salary increases would undoubtedly enhance the prestige of a specialized bench. 145 For example, in the brief two-decade lifetime of the Federal Circuit's existence, the prestige of this semi-specialized court has increased, and the CAFC has been able to attract superior law clerks because of its sterling credentials and reputation in the legal community. However, even in the absence of Article III status, economic support manifested through increases in terms of tenure, greater employment security, salary, and budgets may provide the enhanced prestige necessary to attract highly qualified specialist judges to the bench.

b. A Response to Allegations of a Putative "Myopic" or "Tunnel Vision" Focus of Specialized Judges

Some specialist court opponents allege that specialist judges may make decisions based on an overly narrow "myopic focus." 146 These critics maintain that the status quo deployment of generalist judges with a more panoramic view of the law should be retained. 147 For example, the Hruska Commission originally criticized specialization by stating, “the quality of decision-making would suffer as the specialized judges become subject to ‘tunnel vision,’ seeing the cases in a narrow perspective without the insights stemming from broad exposure to legal problems in a variety of fields.” 148 Similarly, in the 97th Congressional Hearings, opponents cautioned, “the proposed [Federal Circuit] court with its limited and specialized jurisdiction may well lose the competence to act on the broad and fundamental questions posed, for example, in antitrust cases. I believe that these requisite broad views are acquired, and continually renewed, by constant exposure to the sometimes heated, and philosophical, debates to all areas of law.” 149 Consistent with this view, Judge Posner believed that specialized judges would lose their ability to see the broad panoramic policy landscape through “reduction . . . [of] the cross-pollination of legal ideas.” 150

However, the perceived "overly myopic" or "tunnel vision" focus of specialized judges may be based upon unsettled assumptions. First, the mere fact that a specialist judge concentrates his decision-making responsibilities in one distinct area of law certainly does not necessarily mean that his or her comprehension of larger societal and public policy concerns is deficient. Specialist judges may have unrestricted access and exposure to constitutional, legal, and sociological literature to permit a balanced, well-rounded view. Second, while generalist judges are often exposed to a wide variety of cases, many of such judges possess dockets that span more limited areas of law. Thus, for example, while the Delaware Supreme Court may be initially characterized as a generalist court, it hears a disproportionately large number of cases, relative to other states, of corporation and business-related cases. 151 Nevertheless, the Delaware Supreme Court's "specialization in fact" has not been criticized as endowing it with a narrow "myopic" focus. 152 Instead, this court’s specialized corporate focus has been held as an exemplary model for other states to follow.

Third, it would be highly inconsistent for detractors to maintain that generalist judges may become skilled in specialized areas of law through self-study but then argue that specialist judges could not use self-study to widen their span of knowledge of other areas of law outside their own expertise. 153 No reliable evidence, at present, appears to exist to demonstrate unequivocally that specialist judges at equivalent levels are any less capable or intelligent than their generalist counterparts. 154 Thus, it would be premature to conclude that specialist judges would remain "myopic" in focus rather than exploring tangential areas of law-science interfaces and social, economic, and legal policies impacting their respective areas of specialized law. Well-designed research and investigation is necessary to ensure that conclusions in this important area are based on fact rather than on unsupported opinion and conjecture.

As a variant of their argument, specialist court detractors sometimes caution that judicial specialization on the bench or otherwise in complex cases would remove these cases from the judicial mainstream, making them undecipherable to the "average lawyer or judge" or "man in the street"--an undesirable consequence. 155 Such opponents state that deployment of generalist judges to hear and decide complex technical or scientific cases, such as those in intellectual property law, would result in "more thorough airing [of] an issue." 156 They argue that generalist courts "air issues" in the public forum by virtue of the necessity for educating judges on the record, with subsequent publication of their decisions. 157

However, this argument neglects to consider that the average "Walter Mitty" man-in-the-street possesses little comprehension of the finer points of brain surgery or neurological medicine. 158 Yet this same hypothetical man will commonly rely upon the expert judgment of his specialized neurosurgeon or neurologist, in spite of his ignorance, to make intelligent decisions regarding his own health and well-being. Similarly, the average citizen, unable to fathom the scientific complexities of high technology cases, should support the foremost priority of the courts to achieve justice in their decisions through specialization.

Moreover, the detractors' argument incorrectly assumes that the man-in-the-street understands the substance and procedure of court testimony and decisions. Commentators have noted their frustration that lay jurors in complex scientific or technology cases, witnessing first-hand the "airing of issues," are unable to understand either the technology involved or the jury instructions concerning the law to be applied in the case. 159 Finally, the argument neglects the critical fact that the press, through news media, including newspapers, television, and radio, often functions to "air issues" pertaining to judicial decisions to the general populace. The press, as the true public forum, often functions practically in translating "legalese" and technical verbiage of court cases into language that is comprehensible to readers.

c. A Response to the Criticism That Specialist Courts May Be Particularly Susceptible to Special Interest Group Manipulation

Specialist court detractors argue that a specialized judiciary hearing technically complex cases (e.g., intellectual property) may be particularly susceptible to political lobbying, a stratified bar, or special interest group manipulation that would ensure appointment of favorable judges to the specialist court's bench. 160 An underlying assumption is that special interest groups have positions contrary to the societal interests of the general public and possess sufficient political clout to manipulate the judicial system. 161 Judge Richard Posner believed that it is more probable that special interest groups would obtain control over a specialized court rather than a generalist court for two principal reasons: (1) specialized court appointments are necessarily made from special interest group "warring camps," unlike generalist court appointments, and (2) specialist benches are more susceptible to the vicissitudes of political opinion than generalist benches. However, constitutional scholars recognize that the United States Supreme Court historically has been subject to broad far-reaching swings in social policy depending on whether Democrats or Republican presidents have been empowered to make judicial appointments. 162

Thus, commentators observe that judges often align themselves politically among major party lines, with Democratic judges frequently supporting the disenfranchised blue collar working class, racial and other insular minorities, purchasers of goods and services, and criminal defendants. 163 In contrast, Republican judges commonly align their judgments with the economically privileged elite, corporate businesses/management, white Anglo-Saxon majoritarian America, sellers of goods and services, and criminal prosecutors. 164 With the enormous baseline "scatter" level of major policy swings depending upon political party affiliations of judicial appointees within the Supreme Court and other generalist courts, it would be difficult to find support for the hypothesis that specialist courts succumb to special interest group pressures more than generalist courts.

d. A Reply to the Suggestion That Generalist Judges May Readily Become Self-educated to Adjudicate Technically or Scientifically Complex Issues

Some believe that federal generalist judges may readily educate themselves to acquire needed specialized information, "much as any intelligent, well-educated person does, through his or her readings of various publications, exposure to television and radio, and educational pursuits through courses, lectures, and seminars.” 165 Similarly, Justice Frankfurter once noted, “It is an old observation that the training of Anglo-American [generalist] judges ill fits them to discharge the duties cast upon them by patent legislation. . . . [S]o long as the Congress . . . makes the determination of originality [for patentability assessments] a judicial function, judges must overcome their scientific incompetence as best they can.” 166 Nevertheless, self-study by generalist judges remains an imperfect solution to remedying such deficiencies, particularly in complex high technology cases involving intellectual property issues, in part because of the intrinsic limitations in the knowledge base of generalist judges.

In contrast, proponents of specialized judiciaries maintain that specialized judges who are intimately familiar with one area of law—through either possession of technical/legal backgrounds or association with scientific/legal experts—may more rightly decide cases involving complex "cutting edge" technologies. 167 It is difficult to imagine that generalist judges, even through intensive self-study, may, in a short period of weeks or months, obtain sufficient knowledge of highly specialized areas of high technology to comprehend the finer nuances of these complex fields. Analogously, in medicine, a neurologist, proficient in his or her field, possesses the expertise to discuss with other brain specialists the latest breakthroughs in medical science in treatment of specific neurological disorders. 168 However, the prudent general practitioner would focus upon superficial diagnostic criteria for such diseases, relegating the in-depth diagnosis and treatment to the neurological experts.

Thus, specialized judges, with technical training and calendars dedicated to intellectual property matters, would possess both the ability and time to become “expert judges” in the intricacies, nuances and subtleties of complex areas of law. 169 Such specialized judges would potentially have the scientific and legal expertise needed to debate the finer points of intellectual property law as only experts in a field can. 170 These “expert" judges would possess the knowledge to resolve factually and legally complex cases expeditiously and decisively, to leave a legacy of consistent and uniform case law that clarifies rather than confuses. 171 If specialized judges are deployed and increased specialization within the judiciary is established, it is anticipated that the field of law could begin to make the paradigm transformations necessary to ensure the preservation of judicial system credibility much as the field of medicine has done when confronted with accelerating advances in technology.

2. Models For Federal Court Reform: Specialized Judges in Specialized State Courts

Under our federalist system, experimentation within the state courts may be used as a model for court reform in the federal judiciary. Over the past two centuries, ongoing nationwide discussion of the benefits of state specialty courts has resulted in the successful formation and establishment of business courts, 172 adult drug courts, 173 family courts, 174 juvenile drug courts, 175 teen courts, 176 domestic violence courts, 177 and business courts. 178 Specialist judges in state courts have brought thoughtful in-depth analysis, logic, and consistency to judgments, leading to greater credibility of the judiciary in its pronouncements. 179 While specialty business courts have been established in many state jurisdictions, New York has made notable progress in establishing specialized courts as subdivisions or subunits of existing courts. 180 These include the Commercial Division of the Supreme Court, the Housing Court, family courts (with four specialized divisions), drug treatment courts, and domestic violence courts. Thus, specialized state courts, with their corresponding specialized judges, may serve as potential models for deployment of specialized judges and courts in the federal system. 181

a. State Business Courts: The Delaware Court Of Chancery as a Specialization Model For Other Jurisdictions and Areas of Law

Our nation's first specialized business court, the Delaware Court of Chancery, has existed for over two centuries. 182 Strictly speaking, the Delaware Court of Chancery is a semi-specialized tribunal--like the Federal Circuit--rather than a purely specialized tribunal, because its jurisdiction extends beyond corporate matters. While this well-regarded court's judges have developed considerable expertise in resolving corporate law issues through its extensive business docket, the court neither focuses exclusively on corporate cases nor hears all business cases arising in Delaware. 183 The Delaware court's significant accomplishments in pioneering major principles in corporate law has made this business court an exemplary model for other jurisdictions and areas of law to follow. 184 With the Delaware court as a historic predecessor, business courts have already been established in New York, New Jersey, North Carolina, and Wisconsin. 185 Recently, the American Corporate Counsel Association vocalized support for "business courts or specialized divisions or parts [of courts] dedicated to business litigation." 186 Thus, the Delaware Court of Chancery may serve as one appropriate example of successful state court reform that may serve as a preliminary model for studying potential federal judicial reform in increasing specialization for high technology cases.

b. State Drug Courts and Family Courts 187

State drug courts were instituted as part of a nationwide program known in the media as the “War on Drugs,” a term popular in the 1980s to describe the governmental response to America’s drug crisis. Drug courts were created “out of a sense of frustration that law enforcement and imprisonment policies were not having the impact on drug supply or demand that proponents of the war against drugs of the 1980s had hoped for.” 188 These courts have received tremendous public support, and there are now over 425 drug courts in operation in the United States today. 189

Since the War on Drugs has cost over $300 billion dollars to date 190 and has not had a major impact on the incidence of drug-related crime, treatment of drug abusers has been advocated as a logical, cost-effective alternative. 191 Thus, in the 1980s, states experimented with the concept of drug courts to manage the increasing number of drug abuse cases and place offenders in effective drug treatment programs. 192 Drug courts have promoted reduction of the financial and societal costs of incarceration through the monitoring of nonviolent drug abusers. Proponents of these courts predict that rehabilitation results in lowered recidivism or reconviction crime rates for these offenders, reducing court caseloads and correctional facility costs. 193

Drug court supporters maintain that drug tribunals have successfully reduced the incidence of drug abuse reoffenses, lowered drug-related criminal activity, diminished the number of prisoners incarcerated in prisons and jails, reduced court caseloads, and obtained considerable cost reductions throughout the criminal justice system. 194 Therefore, the well-regarded and successful establishment of state drug courts as specialty courts may serve as another model for federal courts considering enhanced specialization for complex high technology cases.

State family courts originated in the United States at the turn of the nineteenth century, about the same time as juvenile courts, but long before drug courts. 195 Comparable to drug courts, family courts created a nontraditional, nonadversarial tribunal to resolve a family’s legal issues efficiently and quickly, with a minimum of trauma to children and families in crisis. 196 As a result of relatively recent support by the American public, specialized family courts or divisions now exist in diverse forms in several states. In 1996, the American Bar Association funded a two-year project designed to facilitate the establishment of unified family courts in six cities. 197 A conference of bar presidents also advocated the establishment of these courts. 198

At present, five states utilize a separate family court for family law cases, 199 five other jurisdictions employ separate trial divisions for these matters, 200 and one state possesses a family department within the trial court. 201 In order to handle cases in different parts of their respective states, fourteen states place geographical restrictions on family courts or court divisions; 202 nine other states plan to or will experiment with family court programs in the near future. 203 Two other states have received legislative approval to establish these courts, 204 leaving fourteen states that continue to handle family law cases solely within general trial court proceedings.

A judge’s term within a family court may vary significantly. While some states’ family court judges receive lifetime appointments, 205 other states permit temporary judicial assignments of limited duration. Detractors maintain that these rotating judges possess less knowledge of this specialized area of law than is necessary for just and efficient adjudication of cases. 206 Yet for smaller jurisdictions with limited financial resources, such rotating judges may fill an appropriate prescription for minor judicial change. Rotating judges may also be considered as a viable practical alternative in the federal court system. Scholars have supported this practice for over a decade that provides judges with intensity and focus in one area of law, with subsequent rotation to other areas of law to prevent staleness and isolation. 207

Criticisms of the traditional generalist trial court forum include the following: (1) family matters are often burdensomely expensive and time consuming; some disputes are tried more than once, or are tried before different judges—or even different courts—in a fragmented, rather than unified, approach; (2) children may be inadvertently subjected to trauma; (3) judges hearing family law cases may lack interest in a given dispute, understanding, or the temperament to hear these cases; and (4) courts inadequately address needs of the poor, who lack financial resources to hire an attorney and must represent themselves. 208 Court reform has established state family courts that are designed to specifically address these disadvantages of traditional trial court fora. Thus, state family courts may serve as yet another distinctive, successful preliminary model for federal courts considering increased specialization in high technology arenas.

B. Effect of Specialization on Uniformity of Judgment and Determinancy in Intellectual Property Cases Leading to Enhanced Judicial Credibility and Stabilization of Law

1. The Federal Circuit's Mandate To Provide National Uniformity and Predictability of Judgment

Specialization in the federal court system may provide judges with the tools for implementing greater uniformity of judgment, determinancy, accuracy, and predictability in intellectual property cases. Increased uniformity and predictability in adjudication almost invariably lead to enhanced judicial credibility and the resultant desired effect of stabilization within a given body of law. The absence of nationwide uniformity of law and the presence of conflicts between the PTO, district courts, and the circuits was a primary impetus for establishing the Federal Circuit as a semi-specialized Article III tribunal. Lack of uniformity of application of patent laws historically led to rampant forum shopping, with bitterly fought battles in the circuits over patent infringement cases. 209

In response, the 97th Congress addressed the need for a "Federal Circuit-type court," stating that a specialized patent law court would result in the desired uniformity of law, with concomitant decreases in expenses of litigation and forum shopping. 210 The Honorable Pauline Newman, prior to joining the Federal Circuit, testified before the legislature on her opinion that such a specialized appellate court would give "a greatly enhanced degree of predictability of the outcome of patent litigation," by providing uniformity in application of legal rules. 211 Even the Supreme Court, in Graham v. John Deere Co., noted a lack of uniformity that could well be remedied by the Federal Circuit to resolve the problem of "a notorious difference between the standards applied by the Patent Office and by the courts." 212

Whether the Federal Circuit has provided the level of uniformity and predictability of judgment that was originally envisioned has not yet been determined. However, since the Federal Circuit's inception, there has been a dramatic increase in the CAFC's affirmation of district court appeals. 213 Some commentators attribute this initial elevated affirmation rate to the Federal Circuit's success in establishing nationwide uniformity of judgment in patent law cases; however, a subsequent decrease in affirmation rate makes this conclusion equivocal. 214 Specialist court proponents maintain that increased specialization within the judiciary 215 may lead to greater uniformity of law and perhaps higher district court affirmation rates.

2. The Problem Of Indeterminancy Reflected In the Following: The Federal Circuit's 'Panel Dependency,' Ambiguities In Patent Law Concepts, and In the Deployment of Lay Juries

Patent attorneys often criticize that the Federal Circuit's 'panel-dependency,' resulting from the appointment of three-judge panels to hear cases, may lead to unpredictability or indeterminancy of judgments. 216 The concern, whether legitimate or not, is that various panels hearing infringement cases involving the extent of the applicability of the doctrine of equivalents in claim construction interpretation and assessment may decide such issues differently. 217 Yet, some level of indeterminancy is unavoidable because until the CAFC Panel decides an appealed case, the trial court's result is not viewed as being determinative. 218 The net result is that litigators may prefer to continue litigation on appeal rather than reach settlement 219 or accept summary judgment at the trial court level, vastly increasing costs of litigation. 220 Advocates of increased specialization in the federal courts maintain that court reform would result in greater uniformity and predictability of judgment with concomitant decrease in indeterminancy because logical rules will be developed to meet high technology objectives. Such enhanced uniformity of application of law would result in greater consistency among panels.

Indeterminancy or lack of predictability of judgment also exists in the application of vague patent law concepts, such as the critical issue of claim interpretation and the doctrine of equivalents. 221 Subsequent to the Supreme Court's decision in Warner-Jenkins Co. v. Hilton Davis Chemical Co., 222 Judge Michel observed that this ambiguous doctrine has spawned "the greatest source of indeterminancy" in patent law, with almost all filed patent cases alleging both literal and equivalent infringement. 223 Recently, the Federal Circuit published Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., LTD. 224 In Festo, on remand from the Supreme Court, the CAFC decided en banc that the doctrine of equivalents was limited by prosecution history estoppel in that the subject matter relinquished during patent application prosecution was barred from claim coverage.

The Federal Circuit's decision in Festo may have been calculated to diminish the level of uncertainty of adjudication among the generalist lower courts resulting from this doctrine through erection of an easily applied "bright line" standard. 225 Certainly, indeterminancy in interpretation of the Doctrine of Equivalents in patent claims has led to increased uncertainty among the lower courts. In effect, Festo's per se "bright line" rule may have served to diminish the workload of the district courts, shifting litigation from the generalist lower federal courts to the specialist PTO's Board of Patent Appeals. 226 However, a rigid "bright line" rule, while perhaps enhancing predictability of judgment throughout the district courts, 227 may paradoxically lead to judicial inefficiency and ineconomy. This undesirable scenario might occur if patent applicants choose either to appeal PTO decisions on claim validity or to litigate claims in the courts rather than creating additional disadvantageous prosecution history estoppel under Festo. Alternatively, the Federal Circuit's decision in Festo may have resulted in the delegation of the principal responsibility of claim interpretation to the specialized PTO as a undefined mixture of technically complex factual and legal issues. 228 Nothwithstanding the Federal Circuit's en banc Festo decision, the expansion of claim coverage through the doctrine of equivalents and the contraction of coverage under the nonobviousness requirement continues to perpetuate indeterminancy in corporate competition in high stakes patent infringement and claim validity battles. 229

The Supreme Court has ineffectively attempted to reduce levels of indeterminancy in claim interpretation by delegating this decision to generalist judges rather than to generalist lay jurors. Thus, in Markman v. Westview Instruments, the Court held, "judges, not jurors, are the better suited to find the acquired meaning of patent terms." 230 Yet Berkeley Professor Mark Lemley noted that there has been a high Federal Circuit reversal rate for Markman district court decisions--as high as 40% reversal being reported in some studies. 231 Similarly, one observer comments "there's a high likelihood that on review, the [Federal Circuit] will change the construction of the claims." 232 The problem, in part, is that generalist district court judges, and perhaps even semi-specialized Federal Circuit judges, may lack the in-depth technical knowledge and training necessary to make sage determinations on such critical issues as claim interpretation in intellectual property law. Thus, indeterminancy is predicted to continue unless and until increased specialization is implemented within the federal judiciary in the resolution of complex issues of fact and law. 233

An additional source of indeterminancy occurs with the increasing use of lay juries in patent infringement cases. 234 Typical American juries, comprised of lay citizens with no specialized expertise in either law or science, are ill-equipped to comprehend the subtleties of such complex technologies as satellite telecommunications, genetically engineered human hormones, or the computer code used in Internet transmissions. Experienced litigators may capitalize on the naivete of juries to make simplistic or emotional arguments in "smoke screens" that may minimize the tremendous complexity of the field. 235 Consequently, increased use of special "blue ribbon" juries comprised of experts who truly comprehend the subtleties of intellectual property cases may constitute a significant proposal for court reform in this area of law. 236

3. Internet Law Cases Raise Unique Procedural and Substantive Issues Leading to Lack of Uniformity of Law and Predictability of Judgment

Internet law, like other complex high technology cases, constantly challenges the competence limits of the legal system. The Internet, lacking territories or boundaries--"cyberspace" has no situs--has raised perplexing legal issues, particularly in jurisdiction and choice of law arenas, which have stymied the courts. In the wake of such unique issues, the courts have discovered that Internet and “computer technolog[ies] do not fit neatly within any of the categories of intellectual property law.” 237 Two such controversial Internet issues where federal courts differ radically in their decisions are (1) personal jurisdiction and (2) choice of law, both involving procedural due process under the Fourteenth Amendment. 238

a. Courts Differ In Their Approaches To Determining Personal Jurisdiction Over A Defendant

Some courts have simplistically attempted to erect a "bright line" rule that transmitting information to a location or placing such information on the World Wide Web is sufficient to subject a defendant to the jurisdiction of the court where the information was received. 239 However, most courts, following the leading case of Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 240 have observed that no clear "bright-line" rules can be constructed for Internet jurisdictional issues since many of these cases lie on a spectrum depending upon whether a Web site may possesses commercial or interactive features. 241 The Pennsylvania court said that a "sliding scale" of the probability of a court's assertion of personal jurisdiction over a defendant depends on the "nature and quality of commercial activity that an entity conducts over the Internet." 242 Jurisdiction may be exercised over active Web sites, but not passive Web sites. However, for the "middle ground" cases, interactivity and commercial activity on the Web site is examined.

In an example of an active Web site, the Sixth Circuit Court of Appeals in CompuServe, Inc. v. Patterson, 243 noted that a principal issue in many Internet cases was whether sufficient Burger King-defined "minimum contacts" 244 occurred during business transactions. Here, the court concluded the Ohio district court possessed jurisdiction over a Texas Internet user because he "reached out" from Texas to Ohio and "originated and maintained" contacts in Ohio, when he subscribed to an Ohio online network service and entered into an agreement to sell his software over the Internet. 245 Minimum contact analysis becomes relatively straightforward in Internet cases where a defendant has intentionally and purposefully availed himself of the protections of the forum state, thereby leading a court to conclude that jurisdiction exists.

In contrast, in passive Web site cases, defendants typically argue that placing information passively on the Internet does not purposefully direct activities towards citizens in a targeted jurisdiction. 246 For example, in Bensusan Restaurant Corp. v. King, 247 the New York court determined no personal jurisdiction existed over a defendant who passively created an Internet Web site because that activity did not indicate purposeful availment of the benefits of New York state. 248 However, in State v. Granite Gate Resorts, the Minnesota Court of Appeals found jurisdiction over a relatively "passive" Internet gambling service website called "WagerNet," stating it was "open to international markets," noting the defendant's intent to recruit customers from a wide geographical range. 249 The court, in finding minimum contacts existed, analogized the passive Web site to broadcast and direct mail solicitation where advertisers distribute their messages over a large area, then wait for recipients of the ads to actively respond to purchase the products. Thus, although the Bensusan and Granite Gate Resorts cases both involved passive Web sites, the two courts arrived at opposite conclusions regarding assertion of personal jurisdiction over the defendant.

While cases involving classical active and passive Web sites at the extreme ends of the jurisdictional spectrum are more readily analyzed, interactive Web site mid-spectrum cases pose an inherently greater challenge for courts. For example, in Maritz, Inc. v. CyberGold, Inc., 250 the Missouri court held that jurisdiction existed over defendant CyberGold, although the defendant claimed it operated a passive Web site. This court found that the 8th Circuit's minimum contacts "nature and quality of contacts prong" was met because CyberGold intentionally transmitted advertising information globally to Internet users. 251 In addition, the court found that the second "quantity of contacts prong" was met since CyberGold sent e-mail advertising to Missouri users about 130 times, indicating the defendant purposefully availed itself of Missouri privileges. 252

Some courts have modified the Zippo test employing a "totality of contacts" approach, where the court considers factors such as (1) interactivity of the Web site, (2) defendant's other actions involving the forum state, and (3) customers, advertisements, and wire communications in the forum state. 253 Still other courts have used the "effects test" for evaluating jurisdiction—rather than Zippo spectral analysis or the 8th Circuit analysis—whereby the court assesses whether the defendant's actions were targeted directly toward or have a direct effect in the forum state. For example, in Panavision International, L.P. v. Toeppen, 254 the Ninth Circuit court noted that the "effects doctrine" measured the "effects felt in California" as an indicator of purposeful availment, consistent with prior decisions in the 9th and 6th Circuits. 255 The court analogized this jurisdictional case with tort principles since here, the defendant's intentional actions in registering plaintiff's trademarks as domain names for the purpose of extortion caused harm to the plaintiff in California where jurisdiction was asserted. 256 Similarly, in the recent case of GTE News Media Services Inc. v. BellSouth Corp., 257 the D.C. Circuit court utilized a strict purposeful availment standard, requiring that a defendant intentionally target its activities towards a specified forum before personal jurisdiction could be asserted. This limiting jurisdictional standard was intended to give potential Web site operator defendants notice that they will be liable for legal action if they target activity towards a forum. 258

Thus, various district courts differ substantially in their approach to the question of asserting personal jurisdiction over a defendant's Web site. Cases such as these, resulting from the inherent complexity of Internet interactions themselves, lead to circuit splits, lack of predictability of judgment, and forum shopping in the absence of uniformity of application of law. Internet Web site owner plaintiffs, faced with various jurisdictional approaches, might prefer to sue a defendant in a court known to use or favor the Zippo spectral analysis rather than one employing the D.C. Circuit's "effects doctrine" and strict purposeful availment standard: the Zippo court approach appears more "plaintiff friendly," while the "effects doctrine" approach is more "defendant friendly." Since the Worldwide Web permits instantaneous transactions in multiple states, litigants in high stakes Internet disputes find themselves consuming financial resources in costly jurisdiction battles with concomitant reductions in the forum court's efficiency and economy.

b. Courts Vary In Their Treatment of Choice of Law Issues

Internet cases raise choice of law issues because the various states have their own competing interests in applying their own substantive law. 259 The Internet is unique in that it permits parties in remote locations to instantaneously, at the click of a mouse, enter into contractual agreements with performance independent of the parties' physical situs or the information involved. 260 Of course, a court's choice of one state's law over another's should be rationally based with considerations for justice and fairness in decisions, consistent with the parties' expectations. 261 Historically, in Milliken v. Pratt, 262 the original version of the Restatement Conflicts of Laws was applied by the court that first held that the substantive law of the place of contracting was to govern the contract's validity and construction unless that law offended the public policy of the forum. Courts in the 1950s began to utilize the "center of gravity" approach that considered policies underlying conflicting laws. 263 Under this flexible approach, still used today, the court first examines all significant factors influencing the decision regarding the choice of law to be applied, and second, determines which state's substantive law possesses the most significant link to the transaction or parties and applies that state’s law in the case. 264

The "center of gravity" approach was later replaced in most states by the approach presented in the Second Restatement Conflict of Laws, where in the absence of a contractual provision for choice of law, the court examines (1) the places of contracting, negotiations, and performance; (2) the location of the contract's subject matter; and (3) the parties' places of business and incorporation, considering their domicile, residence, and nationality. 265 In addition, the Second Restatement provides the following criteria for evaluating the above factors: (1) the relevant policies of the forum, the interested states, and those underlying the relevant field of law; (2) the protection of the parties' justifiable expectations; (3) the interests of international and interstate jurisdictions; (4) the degree of effort needed for application of the law; and (5) the promotion of uniformity and consistency of judgment. 266

However, the Second Restatement's geographical "most significant relationship" approach to choice of law in the absence of a contractual forum selection clause cannot be readily applied to Internet transactions in "cyberspace," which is lacking a readily definable geographical situs or location. 267 The Organization for Economic Cooperative and Development observed that choice of law issues are "particularly difficult in the case of international computer networks where, because of dispersed location and rapid movements of data, and geographically dispersed data processing activities, several connecting factors could occur in a complex manner involving elements of legal novelty." 268 Some commentators maintain that only treaties such as TRIPs or the WIPO's Copyright Treaty could adequately resolve choice of law and jurisdiction issues relating to Internet technologies. 269 Correspondingly, the Berne Convention's rule stated that for copyright infringement action, the choice of law was to be the law of the nation in which the infringement occurs, rather than the law of the author's nation, or the law of the nation where the work was first published. 270

However, like personal jurisdictional issues, discussed previously in part III.B.3.a., the existence of the Internet raises choice of law issues that lead to lack of uniformity and predictability of judgment, with consequent forum shopping unless national or international courts or legislative bodies intervene to provide order to this complex, unsettled area of law. Issues of choice of law and jurisdiction raised by the Internet have been the recent topic of academic commentary for future courts and legislatures to resolve. 271

C. Specialization as a Prescription For Forum Shopping Leading to Enhanced Judicial Efficiency and Economy

While the Federal Circuit has been instrumental in providing greater uniformity of application of law within circuits, it is perhaps inevitable that the complexity of high technology issues continues to challenge the federal courts, resulting in circuit splits and creating forum shopping opportunities for litigants . 272 For example, Professors Landau and Biederman recently noted that conflicts among the federal circuit courts of appeals in copyright law existed in virtually all doctrines ranging from "threshold issues of originality and ownership to infringement and damages." 273 Conflicts of substantive law led inevitably to forum shopping. This occured notwithstanding the enactment of the Copyright Act of 1976, 274 originally designed to provide uniformity of law. These professors noted that while some circuit clashes were resolved by either the Supreme Court 275 or Congress, 276 forum shopping by litigants for courts favorable to their positions continued to cause both the judiciary and litigants increased costs of adjudication and inefficiency due to lack of uniformity of law. 277

Prior to the Federal Circuit's creation, proactive legislators believed that a specialized patent court would reduce forum shopping and decrease expenses of litigation. 278 They predicted that such an expert court focusing on patent matters could provide uniformity and consistency in intellectual property law, resulting in increased judicial efficiency and economy. Even in antitrust appeals, Judge Newman contemplated that the specialized Federal Circuit’s focus upon patent claims, retaining nonpatent claim issues in generalist district courts, could be an effective means to prevent forum shopping by litigants, while preserving the "best of both worlds" of specialist and generalist court decision-making authority. 279

With increased specialization, particularly by the semi-specialized Federal Circuit and specialized PTO, intellectual property law has become more uniform, with a decrease in forum shopping. 280 However, with the exponential growth of high technology breakthroughs, litigants have invariably found themselves again forum shopping among circuits that may have ruled favorably on similar matters. Greater specialization in the district courts and/or the Federal Circuit may serve to significantly reduce the need for a litigant's meandering through forums, resulting in increased uniformity of the application of the law among appellate court circuits. 281

In addition to providing greater uniformity of law, specialization in various judicial contexts has resulted in measurably greater judicial efficiency and economy. 282 Chief Judge Howard Markey argued that specialization such as that initially proposed within the Federal Circuit would make the court more efficient as CAFC judges become regularly exposed to patent law cases that raise similar issues. 283 Likewise, legislators historically have noted that a specialized patent tribunal should predictably reduce expenses of litigation, making it more economical, and accelerate patent litigation proceedings, yielding both increased efficiency and economy. 284

The inefficiency and ineconomy due, at least in part, to inexperience of generalist judges, may be illustrated by a example: Judge Motley's unanticipated decision in the case of Agee v. Paramount Pictures held that in Laurel & Hardy silent films used in an episode of "Entertainment Today," there was no copyright infringement when a sound recording was syncronized to the film's purely video images. 285 This unexpected decision flew in the face of decades of accepted industry custom and usage, causing both the courts and the parties substantial avoidable expense in subsequent litigation. 286 Predictably, the Second Circuit eventually reversed Judge Motley's holding that there was no right of "syncronization" under the Copyright Act of 1976. 287

Greater specialization within the federal courts, whether through such means as greater deployment of specialized judges or increased use of technical advisors, may, at least in part, be used to aid judges in efficiently reaching results that will be upheld on appeal. For example, the Emergency Court of Appeals, created during World War II to control prices and wages, was a specialized court that was considered tremendously efficient because it disposed of cases quickly, with minimum delay. 288 Similarly, the three judge panel system of the semi-specialized Federal Circuit, characteristic of all appellate court panels, could be deemed relatively efficient and economical since fewer than the entire twelve en banc group is required to reach decisions on most complex intellectual property cases.

Furthermore, recent increases in the volume of intellectual property case loads experienced in the federal courts significantly contribute to decreased judicial efficiency and diminution in the quality of judgment. The Federal Circuit normally decides about 900 appellate cases annually—over one-third being patent cases—with approximately 1,000 ongoing, pending cases in any given month. 289 CAFC Judge Michel observed, "the total workload of the Federal Circuit is significantly larger than in its first full year of operation in 1983," commenting that "the court is operating at close to its capacity." 290 Michel cautioned, "even slight increases in the caseload could threaten to erode expedition of cases and perhaps the quality of decisions, or at least the articulation of the rationales." 291 Indeterminancy in patent law cases is expected to increase because it is predicted that the Federal Circuit's caseload will unrelentlessly rise—with increasingly complex technical issues and no greater allocation of judicial resources by Congress in sight. 292 Overburdened appellate court judges may (1) have insufficient time to fully comprehend legal issues, particularly in complex technological areas; (2) give inordinate deference to district court decisions without meticulous inquiry; or (3) be unduly swayed by corporate parties with tremendous financial and political resources at the expense of smaller entities. Since intellectual property litigation costs—often measured in the millions of dollars—typically rank among the highest in corporate law, economy is considered lacking in this area of law. 293

Even if dedicated judges spend the time necessary to provide well considered analyses and decisions, delays become almost inescapable, leading to the flip-side problem that "[j]ustice delayed is justice denied." 294 Notwithstanding that more circuit court judgeships were created in response to case volumes, critics argue this tactic is detrimental in the long term since it would diminish the prestige of the judiciary, and reduce the uniformity of law. 295 Thus, to address the crisis of caseload volume, specialization within the federal courts may now be warranted as a more realistic solution rather than simply increasing district court judgeships in the hopes that "more is better." 296 Increased specialization is predicted to permit courts to improve the quality of adjudication, while at the same time to appropriately address the increased quantity in caseloads. By this means, judicial economy and efficiency is anticipated to be preserved.

D. Protection of United States' Business Interests, Promotion of Research and Development, and Public Domain Disclosure

American corporations spend over $5 billion per year to obtain intellectual property protection for their inventions and products. 297 These corporate investments are increasing due to a thriving U.S. economy and a paradigm shift in business priorities from development of low technology/manufacturing-oriented stable products to high technology innovative products. 298 Since corporations own more than 80% of all patents, 299 intellectual property protection through patents, trademarks, and copyrights may be viewed, to a large extent, as an effective means for safeguarding United States' business interests. Corporations utilize the twin swords of litigation and injunctive relief to vanquish their competitors, under the protections of U.S. patent policy. 300

A more specialized federal judiciary system could promote corporate America’s business interests, research and development and patent disclosure by honoring the Bonito Boats “finely crafted bargain” between inventors and the general public. 301 Such a bargain is struck when a patent is issued—permitting an inventor the protection against infringement for a limited term and simultaneously providing society with the inventive “secrets” that the public may utilize to “promote the Progress of Science and the useful Arts,” as mandated by the U.S. Constitution. 302 The U.S. Supreme Court acknowledged that the policy underlying this clause of the Constitution was to provide “greater [legal] certainty and predictability [that] would foster technological growth and industrial innovation and would facilitate business planning.” 303 In the absence of such constitutional, statutory and judicial safeguards, companies would have little incentive to disclose their precious technological breakthroughs to the world. In contrast, as a testament to the value of a strong patent system, Japan has developed technological expertise protected by patents to transform itself into one of the world’s pioneers in innovation. 304 Similarly, in the United States, the Federal Circuit has often been credited with expanding the subject matter of patentable inventions and upholding the validity of patents, with corresponding support for growing corporate enterprises. 305

The federal courts, through the power of judicial review of legislation, possess the arsenal required to critically evaluate congressional legislation, even probing legislative history and possibly curbing potential corporate special interest group manipulation of the law-making process. 306 In honoring the Bonito Boats balancing policies, a specialized judiciary could conceivably function to protect American society and the general public by perhaps preventing corporate special interest groups from adversely impacting intellectual property law through the enactment of self-interested statutes. 307 Further investigation is necessary to evaluate the potential impact of court reform such as increased specialization in the judiciary consistent with the checks and balances inherent to our tripartite system of government.

Fundamental to a stable United States intellectual property system is the establishment of uniform policies that reliably and predictably permit issuance of patents, trademarks, and copyrights with corresponding rights to exclude others from infringing upon these rights through adequate enforcement procedures. 308 Equally important is the need to ensure that the Supreme Court's mandate that the Bonito Boats "finely crafted bargain" is honored to ensure that the public and community at large are benefited through the granting of limited business monopolies to corporations. 309 Thus, it becomes imperative to establish a judicial system that gives the intellectual property right holder security in the knowledge that courts will uphold these rights in a cost-effective, efficient, and predictable manner. 310 Where the judicial system exhibits inefficiency or unpredictability in rendering its decisions, costs of litigation often increase, 311 with the business community being compelled to allocate tremendous financial resources to litigation in the face of uncertain outcomes. 312 These substantial corporate resources have often been diverted from scientific endeavors or other innovative pursuits, resulting in the judiciary’s loss of credibility and support.

IV. POTENTIAL MODELS FOR COURT REFORM THROUGH INCREASED SPECIALIZATION IN THE JUDICIARY

This part of the article examines models for court reform through increased specialization within the judiciary. This section presents a discussion of the following topics: (1) increased use of the courts' appointment of technical or scientific advisors under such statutes as 18 U.S.C. § 1835, experts under Rule 706, and special masters under Rule 53 to permit greater comprehension of complex technical/legal issues; (2) the Federal Circuit’s own use of technical advisors in its appellate review of PTO and District Court decisions; (3) recommended court reform thorough increased use of specialist judges and adjudicators in the Federal Circuit, PTO, and federal district courts; (4) establishment of specialized divisions within the Federal Circuit, PTO, or District court; (5) the deployment of professional or educated "blue ribbon" juries in the resolution of complex issues of fact, with discussion of the shortcomings of the existing lay jury system in high technology cases; and (6) establishment of federal high technology judicial or administrative courts.

A. The Court's Increased Use of Technical or Scientific Advisors,

Experts, and Special Masters

As the first model to be presented for court reform, increased deployment of expert scientific personnel in the federal judiciary would be a minor, but significant, modification of the existing court structure. Currently, judges in federal courts, who find themselves faced with perplexingly complex scientific issues in civil or criminal practice, appoint technical advisors, experts, and special masters in various supportive capacities. 313 The court's use of such "neutral experts" has been advocated for over a century, with judicial reliance on experts gradually growing in popularity as technology has increased in complexity. 314 The Federal Judicial Center (“FJC”) published its Reference Manual ("FJC Manual") in 1994, discussing and supporting the use of technical advisors, experts, and special masters. 315 With the Supreme Court's decisions in Kumho and Joiner, the judge has been relegated the responsibility to evaluate expert testimony involving scientific, technical, and "other specialized" knowledge according to the Federal Rule of Evidence 702. 316 Thus, it is likely that federal courts – particularly at the Federal Circuit and at district and at appellate court levels – will utilize technical advisors, experts, and special masters with increasing frequency in the future as an aid to both judges and juries in comprehending and resolving complex issues of technology and law.

1. Appointment of technical advisors

The U.S. Supreme Court first acknowledged the federal courts' authority to appoint technical advisors in 1920 in Ex parte Peterson, 317 when Justice Brandeis noted, "courts have inherent power to provide themselves with appropriate instruments required for the performance of their duties." 318 Presently, the Federal Courts Improvement Act permits judges to appoint expert technical advisors to aid them in decision-making. 319 In addition, the FJC Manual generally provides that the court has the inherent authority to appoint technical advisors, consistent with Reilly and other leading cases. 320 Authority to appoint technical advisors may also found in the Federal Rules of Evidence 706, although this basis is less frequently utilized. 321 Technical advisors, in contrast to court-appointed expert witnesses, are used by courts in educational roles to provide technical information or clarification needed for the court's comprehension of complex terminology and concepts. 322 Since technical advisors have a purely advisory role and make no "findings," they cannot be deposed or cross-examined by parties, unlike expert witnesses, and their interactions with judges are not generally chronicled on the court record. 323 Furthermore, communications between judges and technical advisors, like those with judicial clerks, remain confidential. 324 Costs of the court's use of technical advisors may be charged to parties "pursuant to its inherent power" to make such appointments to promote judicial efficiency. 325

For example, the Federal Circuit itself uses senior technical advisors to identify CAFC decisions that may potentially be in conflict with a circulating opinion on a current case. 326 Other courts of appeals utilize technical advisors to assist them in understanding complex matters. 327 Technical advisors may be appointed by federal court judges under 18 U.S.C. § 1835 which states the court "shall enter such orders and take such action as may be necessary and appropriate to preserve the confidentiality of trade secrets, consistent with the requirements of. . . applicable laws." 328 In Markman hearings where the court has the responsibility to interpret claim construction, 329 some judges employ the services of a "technical advisor" to instruct the court regarding complex technology and terminology. The Supreme Court in Markman noted that "judges, not juries, are the better suited to find the acquired meaning of patent terms." 330 Technical advisors are particularly warranted and utilized in Markman proceedings, since as the Federal Circuit observed, "patent specifications are written for persons of skill in the technical field, not for laymen [or lay judges]." 331 For example, in a biotechnology case, the court appointed an expert technical advisor to aid it in understanding technology sufficient to permit it to interpret claim construction in Markman hearings. 332

There is some debate within the judicial community regarding the situations that may warrant appointment of technical advisors. The FJC Manual describes that technical advisors should be deployed by judges as a "last or near-to-last resort," with "hen's teeth" rarity, primarily in non-routine analysis of exceptionally complex cases. 333 However, District Court judges in the Ninth Circuit have tended to take a more liberal approach towards use of such advisors. For example, Judge Jones appointed four technical advisors in various medical fields to aid the court in evaluating scientific evidence regarding breast implant litigation. 334 Similarly, Judge Marsh used a technical advisor, recommended to the court by the parties, solely to provide the judge with clarification of complex scientific reports, terminology, and theories. 335 Increased use of technical advisors seems warranted, particularly in view of the increasingly complex technical issues now confronting the federal courts in Internet law, intellectual property, toxic tort, medical malpractice, and other scientific-legal disciplines. 336 Federal judges hearing such cases may justifiably rely upon appointed independent technical advisors invoking the inherent and stabilizing power of the court. 337

As an extension of this concept, a federal science advisory board consisting of a panel of technical advisors might also be proposed as a resource for judges in evaluating intricate issues of science and technology. 338 Such neutral court-appointed advisory panels may be formed by judges in the Federal Circuit, appellate courts, or district courts. Technical advisory panels would be particularly justified to support judges in analyzing the occasional matters of great impact to the business community and society. 339

Currently, the Federal Circuit does utilize technical advisors to evaluate complex technologies. 340 Yet, Congress has exhibited some inconsistency in permitting the Federal Circuit to utilize technical or scientific advisors in its appellate review of PTO and district court cases. Although the Federal Circuit has been granted explicit congressional authorization to use technical advisors for review of ex parte appeals from the PTO, 341 Congressional authorization for such advisors for review of district court appeals is only implicit in the FCI Act. 342 However, given the Supreme Court's reluctance to interfere with the CAFC's decision-making process, it is probable that the Federal Circuit will be permitted to utilize technical advisors to assist CAFC judges in reaching their judgments in review of both PTO and district court cases. Thus, the Federal Circuit's increased use of specialized technical advisors in complex intellectual property cases may be warranted and supported as an extension of precedent for prior use. 343 While intellectual property cases are jurisdictionally allocated to the Federal Circuit, the Courts of Appeals may similarly be called upon to decide complex legal and scientific issues in mass tort, medical malpractice, and similar cases. It is predicted that future use of technical advisors by adjudicators in the Federal Circuit, Courts of Appeals, and district courts will increase, particularly in complex technical and scientific cases.

2. Appointment of experts and Rule 706

The FJC Manual, with the "Extraordinary Procedures" section addressing court-appointed experts and special masters, was written in response to the court's new role as envisioned in the Daubert decision. 344 Under Daubert, the Supreme Court stated the new "gatekeeper of good science" role for federal judges in ensuring that scientific evidence is valid, relevant and applicable to the facts involved. 345 The Daubert factors for admissibility of scientific evidence include 1) testability of scientific hypotheses in studies, 2) error rate control (i.e., precision), 3) peer review and publication, and 4) general acceptance by the scientific community. 346 Support for the court's authority to appoint experts was also provided by the Federal Judicial Center Manual, 347 based to some extent upon the Carnegie Commission Report findings. 348 Federal Rule of Evidence 706 provides courts with broad discretion and authority to appoint expert witnesses. 349 Rule 706 provides guidelines for appointment, compensation, disclosure, and selection of experts. 350 Under Rule 706(a)'s appointment provision, the court may appoint expert witnesses and may, if it so chooses, permit parties to submit nominations or to agree to the appointment. 351 The expert files a written copy of duties with the court and advises parties of findings. 352

Unlike the technical advisor, the expert witness is subject to deposition and to cross-examination upon being called to testify in court. 353 Correspondingly, the expert witness’ testimony is a matter of public record. 354 Under Rule 706(b)'s compensation clause, the court may pay the expert reasonable compensation. Funds may be extracted either from the parties for most civil litigation or from earmarked government funds if either provided by statute or involving Fifth Amendment just compensation issues. 355 Rule 706(c) provides that the court may authorize disclosure of the court's appointment to the jury; 706(d) allows parties to select their own expert witnesses. 356

The advantages of using a court-appointed expert witness include assisting the court in its decision-making on complex technical issues, particularly (1) where party experts were not credible or failed to provide essential information; (2) when one party was unable, perhaps due to lack of financial resources, to present expert testimony; (3) to resolve conflicts in the "battle of the experts;" or (4) to aid in settlement. 357 In contrast, the disadvantages of utilizing expert witnesses include: (1) neutral, unbiased experts may be difficult to obtain; 358 (2) parties may object, arguing potential intrusion by the court-appointed expert on the adversarial process; 359 (3) judges may lack proper criteria for determining whether a case is appropriate for appointment of an expert; 360 and (4) judges perceive their decisions may be reversed for improperly appointing an expert. 361

However, the Federal Judicial Center survey performed by Cecil and Willging showed that of over four hundred federal judges, 20% of responding judges stated they had used a court-appointed expert witness under Rule 706, 362 and 87% of 431 judges believed court-appointed experts were likely to be helpful in at least some cases. 363 A Harris poll survey found 76% of 200 federal judges and 70% of 200 state court judges supported use of independent experts in complex cases. 364 Experts were reported as most commonly appointed for intellectual property, personal injury and business accounting cases. 365 Particularly in multiparty suits (e.g., complex asbestos and DES cases) where stakes are high, panels of experts have also been utilized. 366 Notwithstanding criticisms of the use of court-appointed experts, 367 the court's deployment of such expert witnesses in appropriate situations requiring deciphering of complex technical or scientific matters may be warranted and justified.

3. Appointment of special masters

Special masters are generally court-appointed attorneys or professors who are authorized under the Rule 53 of the Federal Rules of Civil Procedure 368 to assist judges in pretrial proceedings, discovery, settlement negotiations or arbitration between parties, formulating recommendations for findings of fact and conclusions of law, and devising remedies such as monetary damages or injunctive relief. 369 Additional legal authority for the appointment of special masters by district court judges has included the following: (1) the Magistrate's Act which permits appointment of magistrates as special masters, 370 (2) the federal district court's inherent power to appoint special masters and ancillary support personnel to crystallize issues and make preliminary findings, 371 and (3) the consent of the parties. 372 Court-appointed special masters, utilized with increasing frequency after the ground-breaking Agent Orange products liability case, 373 possess quasi-judicial authority to reach settlements between parties in technically complex cases. 374

The FJC Manual acknowledges that the court may delegate significant responsibilities to special masters. 375 Special masters operate within the rubric of the federal court system and have no independent legal authority apart from that of the district court judge to make final decisions on law or fact or to enforce court orders. 376 Rule 53 provides that special masters shall be deployed "only upon a showing that some exceptional condition requires it," or in jury situations, "only when the issues are complicated." 377 The Advisory Committee, in writing Rule 53's commentary, specifically stated that "masters may prove useful when some special expertise is desired." 378

Special masters have been frequently utilized in patent cases, 379 as well as in unusually complex cases involving product liability, malpractice, antitrust, and mass torts claims. 380 The FJC Manual specifically states that a court may appoint special masters "to educate the fact finder-judge or -jury in the subject matter of particular controversies, such as patent disputes." 381 For example, special masters were utilized in class action lawsuits that have been commonly featured in news stories concerning asbestos, silicone breast implants, tobacco, the Dalkon Shield, Agent Orange, and other products. 382 The court generally allocates costs for special masters' compensationbetween the parties. 383

District court judges also have the authority to refer cases to a court-appointed magistrate judge under the Federal Magistrates Act, 384 whereby the magistrate is required to "conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court of [the] motion." Under this Act, the magistrate judge makes recommendations to the district court judge who makes final, binding de novo dispositions. Thus, the magistrate acts to aid the district court judge in determinations under the court's complete control and jurisdiction. Under section 636 (b)(2), "a judge may designate a magistrate to serve as a special master" pursuant to FRCP Rule 53. In civil cases on consent of the parties, a magistrate may be appointed by a district court judge to serve as a special master regardless of whether complex issues or exceptional circumstances are present in a case that may warrant invocation of Rule 53. 385 Significantly, section 636(b)(3) provides that a "magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States," with the legislative history encouraging courts to conduct "innovative experiments" in their assignment of duties to magistrates. 386 Thus, the Supreme Court, in Peretz v. United States, upheld a district court judge's delegation of duties to a magistrate for jury selection and voir dire proceedings with consent of the parties. 387 The Court reasoned, "Congress intended to give federal judges significant leeway to experiment with possible improvements in the efficiency of the judicial process that had not already been tried or even foreseen." 388 From 1972 to 1994, magistrate judges disposed of 517,000 civil matters. 389

While in patent cases, critics have charged that use of special masters and/or magistrates unnecessarily increase costs of litigation, perhaps compromising the system by providing "justice at a price," 390 special masters remain an invaluable aid to judges because of their specialized expertise and skills in assessing scientific and technical information. In this new millennium, faced with a plethora of emerging technologies, increased use of special masters and magistrates skilled in the technological arts may enhance an adjudicator’s understanding and ability to reach undisturbed, equitable decisions. Court reformers should develop evaluation criteria for determining the effectiveness of increased specialization in the courts through utilization of special masters, magistrates, and technical advisors. An evaluation committee may be formed to develop criteria that include the assessment of the following factors: quality, accuracy, and precision of decision-making; establishment of uniformity, predictability of judgment, and consistency in a body of law; judicial efficiency and economy; procedural due process considerations (e.g., notice, opportunity to be heard, neutral adjudicator); and subjective satisfaction of the participants in litigation. 391

B. The Increased Use of Specialized Judges in Federal Court Reform for Intellectual Property and Other Complex Technical/Scientific Cases

Academic scholars, practicing intellectual property attorneys, and federal judges have acknowledged the benefits of deploying specialized judges in specialized courts. For example, Professor Richard Revesz recommended that specialized judges should either be utilized generally in the courts, or they should be used exclusively for certain complex areas of law. 392 Predictably, since the legal profession is composed primarily of lawyers, law professors, and judges with generalist background and training, it is anticipated that there will be resistance to court reform involving increased specialization in the federal judiciary, particularly in the use of specialized judges. However, the Hruska Commission, in its probing analysis of federal court reform, acknowledged that specialist judges necessarily develop significant expertise in an area of law, and it initially recommended that specialized judges should be utilized more frequently in future court reformation. 393 Similarly, Federal Circuit judges, and other members of the bench, acknowledge the limited abilities of generalist judges to rightly decide complex intellectual property cases. 394 Federal Circuit Judge Michel noted that since the inception of the Federal Circuit, generalist appellate and trial judges have criticized this specialty court, even recommending that the patent infringement jurisdiction be returned to the regional circuits. 395 However, neither the Federal Court Study Committee nor the Long Range Planning Committee of the United States Judicial Conference recommended any changes in the present jurisdiction of the Federal Circuit. 396

When Congress first created the Federal Circuit, only Chief Judge Markey and Judge Rich were former patent attorneys before receiving their court appointments. 397 On the current bench, three judges out of eleven on the Federal Circuit were previously registered patent attorneys prior to their appointment to the bench, with the patent bar having primary input into the decision-making process regarding suggestions for judicial appointments. 398 However, in 1989, five of eight members were once intellectual property attorneys, with four members from the patent bar, and Judge Helen Nies from the trademark bar. 399 It is predicted that this trend toward specialization on the Federal Circuit will continue by necessity as technologies become increasingly complex.

With the Federal Circuit’s principal focus upon intellectual property cases, the President does possess the statutory authority to appoint more specialized, technically proficient, patent attorneys to the bench. However, Section 305 of the Federal Courts Improvement Act suggests that the President should consider attorneys with "a broad range of professional expertise," 400 perhaps because of the "semi-specialized" nature of this court in hearing cases selected from a variety of subject matter. Nevertheless, the Federal Circuit, or a division of it, might further evolve to become more "specialized in fact" in the future through court appointments, approximating a "science or patent court," rather than remaining a mere "semi-specialized" court, with patent law as one aspect of its extensive repertoire. 401 Correspondingly, when Judge Giles S. Rich, the “elder statesman of the patent bar” recently died, Richard Linn, a former patent attorney from Foley & Lardner, replaced him as the newest appointment to the twelve-member Federal Circuit. 402 Thus, through natural attrition and presidential appointment, it is conceivable that the Federal Circuit might become more specialized to meet future corporate and societal needs.

At least theoretically within the realm of possibilities is that the Patent and Trademark Office, 403 an Article I court—like the original Court of International Trade— 404 might be transformed into an Article III court with life-tenured expert judges, remaining under the appellate jurisdiction of the Federal Circuit. Such court reform could be viewed as a natural extension of the historic conversion of the Article I Court of Customs and Patent Appeals to the existing Article III Federal Circuit for complex intellectual property cases. 405 With the Supreme Court's recent Dickinson decision granting a lowered CAFC standard of review, 406 it is at least remotely conceivable that Congress might take the next logical step and empower the PTO, as an expert administrative court like the CIT and previous Court of Customs and Patent Appeals, with Article III status. 407

The PTO, like the CIT, hears cases with major global economic impact (i.e., intellectual property), unlike other agency tribunals such as the Environmental Protection Agency ("EPA"), OSHA, or similar typical administrative courts. Since the PTO's decisions have major consequences for protecting American business interests, Article III status would provide the PTO with life-tenured judges possessing specialized expertise and comprehension of the intricacies of the interfaces of law and technology. Within a fully specialized Article III PTO court, life-tenured expert judges could be appointed from the patent bar who have the knowledge base necessary to conduct in-depth inquiries into the major legal/technical issues raised by high technology cases. The PTO’s specialized intellectual property focus would also provide its expert judges with ready access to technical advisors who are skilled in patent matters.

Under this Article III court model, the PTO would then be subject to the court-court standard of review rather than the court-agency standard, as the Federal Circuit had advocated in Dickinson. 408 Federal Circuit appellate decisions would then be reviewed by the generalist Supreme Court. This federal judiciary structural model would be more consistent with the general principle that specialist courts focus upon the narrower specific issues raised by technological advances, while generalist courts determine the broader societal policy concerns underlying legislative and judge-made law. Perhaps additional investigation might be pursued regarding the impact of this potentially far-reaching court reform upon intellectual property policies.

The concept of the creation of science or patent courts to properly address intricate technological or scientific issues such as those encountered in intellectual property law is not an entirely novel and untested one as some critics may claim. 409 Patent courts have been effectively utilized in foreign countries such as Great Britain and Japan. In England, one patent judge and four chancery judges in Patents Court, part of the Chancery Division of the High Court, hears patent disputes. 410 Specialist Patent Court decisions are appealable to the generalist Court of Appeal, then to the House of Lords. 411 As in the United States, the Japanese Patent Office decides issues of patent validity, whereas the courts handle infringement litigation. 412 However, unlike in the U.S., in Japan, the Patent Office hears trials for invalidation, correction, and extension of patents. 413 Japanese federal courts are more specialized than those in the United States, with intellectual property divisions existing in Tokyo and Osaka district courts. 414 Judges in these two courts hire former Japanese Patent Office investigators as “technical advisors” to aid them in decision-making. 415 Appeals from district courts are heard in eight High Courts, 416 with the Tokyo High Court having the additional Federal Circuit-like responsibility for reviewing Patent Office and other agency decisions. 417

Specialized intellectual property judiciaries have had notable success in Germany and Japan. 418 If the percentage of worldwide issued patents is an appropriate litmus indicator of technological success, then Japan has been more successful than the United States in protecting its economic interests in novel technologies. In intellectual property contexts, such specialist judges promise to be better equipped in possessing the "scientific literacy" required to fulfill their judicial "gatekeeping" responsibilities under the Supreme Court's Daubert mandate to understand and assess scientific, technical, and other complex evidence. 419 Specialist judgeswould be armed with firsthand knowledge of science and technology, and would fully—rather than partially—comprehend the scientific method, complex statistical analyses, and methods for properly evaluating expert testimony in fact finding in complex technical and scientific cases appearing before the court. These qualifications would lend specialist judges a distinct advantage over their generalist counterparts in decision-making. 420

Another progressive specialization proposal would be to establish the Federal Circuit as an entirely specialized high technology court staffed by panels of specialized adjudicators, attorneys and juries that would hear cases involving their respective fields of specialization, such as biotechnology, engineering, telecommunications, computer science, business methods, and Internet law. 421 Such heightened specialization could give greater comprehension to courts handling cases dealing with complex bodies of law within each intellectual property subspecialty, much as medicine in the United States has become increasingly specialized over the past two generations. 422

While increased use of specialized judges at the Federal Circuit level would be a significant modification of existing court structure, deployment of specialized judges at the district court level would be a more innovative, perhaps radical mode of court reform. Thus, some congressional commentators advocate greater specialization at the district court or federal trial court level rather than at the Federal Circuit appellate court level. 423 Similarly, academicians have proposed creation of a science court staffed with specialized judges divided into subject matter divisions to hear cases deemed by Congress to be sufficiently complex. 424 Such cases could be transferred to the science court from district courts and appealable to the Federal Circuit. 425 However, other court reformers advocate the court's deployment of a panel of experts whose determinations would be advisory rather than binding upon the court. 426 As an alternative permutation of court reform, science courts or expert panels might be utilized in a more conservative role by district courts to decide upon such complex matters as causation in product liability cases, with the remainder of issues to be decided by the district court judge.

While the Patent Bar generally supports increased specialization in the judiciary, progress in court reform will probably be accelerated by appointment of an independent evaluation committee to objectively assess the effectiveness of increased specialization in the courts in meeting enumerated objectives. 427 If specialist district court judges or panels, trained in science or other respective areas, are utilized and evaluated on an experimental basis, it is predicted that objective studies will demonstrate their effectiveness in providing enhanced uniformity, predictability and consistency of judgment to the body of intellectual property law. It is maintained that specialized judges on the Federal Circuit and in district courts, by definition, would possess the technical expertise necessary to fully comprehend diverse fields of the intersection of law and science, to adequately address the challenges of complexity surrounding intellectual property law.

C. Deployment of Special “Blue Ribbon” Professional Juries or Educated Juries to Resolve Complex Issues of Fact in Intellectual Property and Other High Technology Cases

The Seventh Amendment to the United States Constitution guarantees the right to a jury trial, and intellectual property litigants are entitled to request a jury trial when damages are the principal remedy sought. 428 The right to a jury trial in patent infringement cases was supported by the first Patent Act of 1790, granting, "such damages as shall be assessed by a jury." 429 At the turn of the nineteenth century, Chief Justice John Jay, in Georgia v. Brailsford, 430 acknowledged that the jury's obligation historically extended to judgment of both matters of law and fact. 431 In the judicial system's formative years, historians observed that since judges often lacked legal training and access to law books, lay jurors were "as well suited to resolve legal issues as anyone else." 432 By the close of the eighteenth century, jury trials became relatively commonplace. 433 However, during the nineteenth century, courts, perhaps from a degree of judicial elitism, 434 restricted the jury's role to that of the modern day "finder of fact," because of the ostensible inability of juries to comprehend "the new industrial reality" and their anti-corporation biases. 435 Law began to be viewed, much like science, as an objective intellectual discipline, with trained judges becoming increasingly necessary for maintaining uniformity of decisions. 436 Yet, some of these early criticisms may be addressed by "expert juries," otherwise known as “blue ribbon” juries, comprised of citizens with appropriate education and expertise to understand and pass judgment upon complex technical/legal issues.

This right to jury was closely guarded in patent law until the Supreme Court's recent controversial Markman decision in 1996, 437 where claim interpretation was deemed to be a matter of law for the court. This determination was consistent with policy objectives of uniformity and predictability of judgment 438 and "foster[ing of] technological growth and industrial innovation." 439 However, the Markman decision confirmed a litigant's right to jury trial for patent infringement cases, or other intellectual property cases involving damages, subsequent to the court's Markman hearing to determine the scope of claim interpretation. 440 Thus, the right to a jury trial in intellectual property cases remains protected by both the U.S. Constitution's Seventh Amendment and the Supreme Court's Markman decision, in spite of the enormous factual and legal complexity that high technology cases bring to lay jury panels nationwide.

While the Supreme Court has not yet decided the constitutionality of whether a "complexity exception" exists in federal courts to enable a court to withdraw complex cases from jury consideration, Justice White, in Ross v. Bernhard, noted that the scope of Seventh Amendment protection of one's right to jury trial must consider "the practical abilities and limitations of juries[;]" and the due process clause may require a bench trial in "exceptional cases." 441 Since jury award verdicts for damages have ranged as high as $20 million to over $1 billion to protect patent holders from infringement by competitors, corporations have high stakes investments in the sometimes uncertain outcomes of lay jury determinations. 442

1. The problem with lay juries

Some argue that traditional juries, drawn from a “cross-section of society," should be permitted to retain their fact-finding function in all cases, rather than having courts relegate this duty to "blue ribbon" expert juries. 443 However, Chief Justice Warren E. Burger has criticized lay jurors for their inability to understand issues and evidence in technically complex cases, stating, "the masses of complicated technical information. . . combined with the often difficult legal issues involved, strain the abilities of the juries to find facts competently." 444

Numerous studies have documented the incompetence of lay juries in deciding cases involving highly complex issues of fact or law. 445 In one representative study involving an economic science case, researchers concluded, "the jurors were overwhelmed, frustrated and confused by testimony well beyond their comprehension." 446 Research has established that comprehension and memory of traditional lay jurors in complex cases are inadequate, in part, because lay people tend to remember a few general impressions of these cases rather than a logical and coherent organizational pattern incorporating specific details. 447 In battles between expert witnesses in complex cases, where conflicting expert testimony is presented, lay jurors become understandably confused. 448 For this reason, lay jurors often err by either overlyrelying upon, or under-utilizing, such expert testimony. 449

Observers have noted that lay jurors, charged with fact finding in complex technology cases, evaluate the facts utilizing "their own attitudes, values, prejudices, and emotions." 450 Most jury panels are comprised of citizens with solely a high school education, with limited comprehension of science and technology 451 or legal principles. 452 Regarding the jury's incompetence in highly complex or technical cases, one court noted, "One who has never studied a science cannot understand or appreciate its intricacies. . . . [T]he jury [possesses] a vast power to commit error and do mischief. . . with technical burdens far beyond its ability to perform." 453 One commentator comments, "the jury does not simply find 'facts,' it invents facts," because "facts" are socially constructed and inextricably colored by the race, gender, and class of the jurors assessing them. 454 Thus, the lay jury is particularly vulnerable to becoming ensnared in the tangled web of scientific complexity confronting it in high technology intellectual property cases.

Unfortunately, the adversarial system encourages attorneys to utilize trial tactics that capitalize upon these juror weaknesses rather than seeking objective justice, often intentionally clouding, rather than clarifying, pertinent technical facts and law. 455 Correspondingly, commentators have noted that lawyers in our "winner take all" adversarial system may purposefully select less educated citizens for their jury panels in attempts to ensure that such triers of fact are unable to accurately assess the merits of highly complex matters. 456 Hence, former Chief Justice Warren Burger suggested that in the absence of an educated jury, judges instead should act as fact finders in complex cases involving highly technical facts that would confuse most juries. 457

Similarly, Federal Circuit Judge Howard Markey noted that jury trial advocates, "never cite[] empirical evidence that each of more than 500 trial judges can be guaranteed to reach more ‘correct’ judgments than those entered on jury verdicts" in complex patent cases. 458 In fact, some circuits have determined that cases, such as those occurring in intellectual property arenas, may be overly complex for a lay jury to competently comprehend the evidence and the law when three factors exist. These factors are: (1) the case size, volume of evidence, anticipated trial length, and/or applicable legal rules themselves, which give the case the attributes of unmanageable complexity; (2) the extent of factual and legal inquiry involved, including the amount of expert testimony, is significant; and (3) the court's inability to tangibly simplify case complexity for jury understanding by partitioning it into discrete manageable segments. 459 However, even a generalist federal court judge, considered among the well-educated elite of society, may lack sufficient specific knowledge and understanding of the complexities of modern technologies encountered in intellectual property and other fields. 460

2. Blue Ribbon juries as a solution

“Blue Ribbon” expert jury panels consisting of scientifically sophisticated members who comprehend technologically complex concepts may provide more fair, more consistent results in intellectual property, toxic tort, medical malpractice, or other technologically challenging cases. 461 These "blue ribbon" juries were prevalent in the first half of the twentieth century and are still utilized today to a limited extent in regions of the United States. 462 They are also used in Great Britain, 463 where jury panels are typically derived from members from given professions or trades. 464

A "blue ribbon" jury panel is not randomly selected from a societal cross-section reflected in voter registration or drivers' license lists, tax records, or telephone directories. 465 Instead, jurors are chosen from a pool of individuals who possess the appropriate educational background, professional training, and/or other pertinent experience to render informed opinions on complex matters. 466 For example, Judge Rubin recommended a “blue ribbon” jury either comprised of persons with technical training in the field or of individuals with formal general education in a products liability case. 467 For highly complex technical cases, such as those in intellectual property law, the professional "blue ribbon" jury might be comprised of individuals with specific training in the particular technical field at issue in the case (e.g., Internet, engineering, biotechnology). Depending on the court's applicable state statutes, such professional juries may be utilized on motion by one or both parties to the litigation. In addition to use of a "full blue ribbon jury," selection of a "partial blue ribbon jury," consisting of equal number of jurors drawn from a “blue ribbon” pool and a regular pool may be considered as a modification of existing structure. 468 Deployment of either "full" or "partial" special juries could provide sufficient expertise and comprehension necessary for the jury to make informed decisions regarding complex issues of fact.

The Supreme Court upheld the use of these special professional juries in Fay v. New York. 469 Similarly, the Court, in Taylor v. Louisiana, noted that proportional representation, lacking in “blue ribbon” juries, did not impede the requirement that a jury represent a fair cross section of the community. 470 Consistent with Fay and Taylor, the constitutionality of the use of the “blue ribbon” jury system has been generally upheld in the circuits. 471 While federal courts are authorized to utilize professional juries on consent of both parties, 472 general expansion of the routine usage of "blue ribbon" juries on motion by one party in complex litigation awaits congressional approval. 473 States such as Delaware have authorized the use of "blue ribbon" juries for trying complex cases, 474 following New York's example utilizing a “blue ribbon” jury comprised of businessmen and professionals. 475

Florida's Dade County has utilized the “blue ribbon” jury system in civil litigation, selecting members with "a high level of intelligence" to evaluate a damage award in a case involving burns due to contact with high voltage power lines. 476 Likewise, in Jackson v. Follette, the court found that the state's use of a special “blue ribbon” jury for a criminal trial did not violate defendant's equal protection and due process rights absent a showing that lack of a particular class was caused by discrimination. 477 Similarly, in State v. Hobbs, a “blue ribbon” jury, consisting of experienced lawyers as the defendant's peers, was upheld in a case involving alleged election fraud. 478

The Supreme Court's consistent upholding of the constitutionality of New York's use of “blue ribbon” juries in Fay 479 lends support for increased experimental use of such special juries by state and federal judiciaries in matters of complex litigation. Certainly, for court reform to have a consistently significant impact in intellectual property, toxic tort, product liability, or other technically complex arenas, juries as well as judges should become more specialized. An anomalous and unbalanced legal system would result from increased specialization of the judiciary without corresponding specialization of the jury system. Without jury specialization, litigators may capitalize on the fog of complexity surrounding high technology cases by attacking the vulnerabilities of lay juries, even if specialized judges were not susceptible to such tactics. Thus, proactive state jurisdictions are challenged to assess the potential value of specialized “blue ribbon” juries in high technology contexts. With successes at the state trial court level, expansion of the usage of “blue ribbon” juries for complex litigation may be accelerated through congressional codification into law, and the Supreme Court's ultimate affirmation of the constitutionality of such jury panels in these unique contexts. 480

V. Conclusion: Untangling the Tangled Web in the Courts Through Specialization

A “tangled web” of complexity threatens to engulf the federal judicial system in intellectual property, antitrust, toxic tort, medical malpractice, and other high technology arenas, as we enter a new "Technological Age " to transition into the next millennium. The Federal Courts Study Committee concedes that a crisis exists in the federal judiciary, particularly at the appellate levels, that must be addressed through court reform. 481 Similarly, the American Bar Foundation, in acknowledging court difficulties, supports specialization within the federal courts, particularly in the appellate system, to handle the growing, unmanageable crisis of caseload volume. 482 Untangling this “tangled web” in the federal court system is not a simple task. However, high technology proponents, such as those in Internet and other newly evolving arenas, may look optimistically towards increased specialization in the federal courts and in international forums as a means for solving the complexity problem—at least in part.

Certainly successes by the Federal Circuit in establishing uniformity of law indicates that the "clear experiment," as Judge Michel calls it, of this semi-specialized Article III court has exceeded expectations, suggesting that greater specialization within the federal courts would be met with similar successes. 483 Thus, greater use is advocated of specialist judges, technical advisors, scientific expert witnesses, “blue ribbon” expert jury panels, specialist federal judiciaries, or other approaches to provide necessary specialization within the judiciary to meet evolving challenges of the future.

Court reform through increased specialization should better equip the judiciary to meet the challenges of its evolving responsibilities. The judicial system has the potential to progress and transform itself through proactive judges who often assume responsibility for exploring the frontiers of legal doctrine in the context of competing societal policies in the absence of definitive precedent or legislative guidance. 484 It is predicted that increased specialization within the judiciary will result in greater comprehension of technologically complex cases; enhanced nationwide uniformity of law; greater quality, accuracy, precision, and predictability of judgment; decreased numbers of circuit splits; diminished indeterminancy; significant improvements in judicial efficiency and economy; and measureable subjective satisfaction with the court system. 485 Further experimentation and studies are necessary to investigate the utility of various modes of increased specialization in achieving the various policy objectives of intellectual property law in the advancement of science.

An Evaluation Committee may be formed to determine and examine various objective and subjective factors in a blueprint for the organized assessment of the effectiveness of court reform. Specialization within the lower tier of federal courts should reduce burdens on the Federal Circuit and the United States Supreme Court to resolve appellate circuit splits that may concern intricately complex technological issues. The Supreme Court could then properly focus its attention upon high technology intellectual property arenas to accept certiorari for cases that would permit establishment of essential broad-based policies in exponentially expanding areas of patent, copyright, and trademark law. The Supreme Court, Congress, the Federal Circuit, and other federal courts have the unique challenges and opportunities associated with growth in novel high technology frontiers in establishing and enforcing laws and policies that promote "Progress in Science and the Useful Arts." Significant court reform through implemention of increased specialization within the federal judiciary should support the courts in meeting these constitutionally-mandated objectives.

Footnotes

* Loyola Law School, Henry Yuen Scholar, J.D.; Stanford University, National Research Service Award postdoctoral fellow; University of California, San Francisco & Berkeley, joint Ph.D. program.
© L. Kondo, 2001. The author expresses gratitude to Dr. Henry Yuen, CEO of Gemstar International, for his invaluable support. Professor Karl Manheim’s review of earlier drafts is appreciated. Special thanks to the JOLT editors and staff members for their assistance during the editorial process. Communications may be sent to the author at llkondo@aol.com.