Part of the Innovation Act, introduced last month in the House, establishes federal rules about discovery and case management to reduce abusive procedural tactics in patent litigation, the judges noted in their letter.
The judges said that section of the bill oversteps the judiciary's longstanding process for setting its own rules.
"We worry that this kind of approach more often will undermine, rather than further, the development of sound rules and practices," wrote Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit and Judge David Campbell of the U.S. District Court for the District of Arizona.
Instead, that content should be developed through the federal judiciary's process, which includes empirical studies, case law reviews and Congressional oversight. That process, the judges said, reduces "the ever-present risk of unintended consequences."
Sutton chairs the Committee on Rules of Practice and Procedures, while Campbell and the Advisory Committee on Civil Rules. The judges sent the Nov. 6 letter to raise the issue "sooner rather than later" to the bill's author, House Judiciary Committee Chairman Rep. Bob Goodlatte (R-Va.), and the judiciary committee's Democrat members.
Congress, the judges wrote, should urge the judiciary's rules committees to evaluate rules changes. "That approach would allow Congress to express its interest in addressing these problems and would respect the long-established virtues of the deliberative processes created by the Rules Enabling Act," the judges' letter states.
Under Section 6, the bill requires the U.S. Judicial Conference to develop rules on discovery of electronic communications and other areas. The House Judiciary Committee held a hearing on the Innovation Act on Oct. 29, just six days after Goodlatte introduced it with a bipartisan group of congressmen.
Patent law attorneys and other experts believe members of Congress are too quickly moving the bill. Judge Paul Michel, who retired from the U.S. Court of Appeals for the Federal Circuit in 2010, called for more narrowly tailored legislation and more input from judges.