A federal appellate judge warned Friday that patent reform bills circulating on Capitol Hill threaten to erode the power of the courts to decide how cases are heard.
At a conference in Washington, Judge Kathleen O'Malley of the U.S. Court of Appeals for the Federal Circuit said the legislation doesn't touch substantive reforms to the law but instead would make changes to litigation case management.
"The things in these current proposals don't fit squarely or neatly within the congressional authority and they go way beyond where I think anyone should want Congress to tread," O'Malley said at the conference, hosted by the advocacy group Innovation Alliance, which represents the interests of patent owners.
Legislative fixes to the rules of civil procedure or evidence—such as addressing discovery abuse, pleadings standards and which cases should be stayed—could create a clash between the judiciary and Congress, said O'Malley, who joined the Federal Circuit bench in 2010.
The courts, she said, make the rules. Allowing Congress to intrude on that authority for patent reform opens the door to other Congressional tinkering, O'Malley said.
"That entire structure would be thrown out, or essentially rendered useless, If we start picking and choosing those rules that a particular constituency finds inconvenient at a particular point in time for a particular class of cases , and say, 'Okay we’re going to overturn that rule,'" O'Malley said.
"And then maybe we'll get another rule we won't like. And maybe we should just have Congress tell us what hearsay is or not," O'Malley said.
O'Malley said the rules committee of the federal judiciary is addressing discovery abuses and fee shifting, as well as changes in the pleading standards, "yet people on the Hill are debating whether they should do it."
"I fear there's too little attention to the fact the courts are trying to address those things," O’Malley said.