8/13/2019 Judicial Conference of the United States - Section 6 of Innovation Act, H.R. 3309

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CO M MI TT E E O N RULES O F PRA CT I CE A N D PROCEDUREO F T HE

J UD IC IA L C ON F ER E NC E O F T H E UNITED ST A T E SWASHINGTON D.C. 544

JEFFREY S SUTTON CHAIRSOF ADVISORY COMMITTEESCHAIR

ir MAxuA i STEVENM COLLOTONa pp e l l a t e ru sS E C R E T A R YE U G E N E R. W E D O F F

B A N K R UP T C Y R U L E S

DAVID G . C A M P B E L LCIVIL R U L E S

R E E N A RAGGICRIMINAL R U L E S

November 6 2013SI D N E Y A FITZWATER

EVIDENCE RUL E S

Honorable John Conyers JrRanking MemberCommittee on the JudiciaryUnited States House of RepresentativesWashington DC 20515Dear Representative Conyers:

We write to offer the initial viev^s o f th e Judicial Conference Rules Committees on on easpect of H R 3309 the Innovation Act

We are th e current chairs o f th e Judicial Conference s Committee on th e Rules of Practiceand Procedure and the Advisory Committee on the Federal Rules of Civil Procedure In thosecapacities we have reviewed the legislation and have shared it with the chairs of otherconmiittees oftheJudicial Conference thatmayhave an interest in the legislation TheJudicialConference may wish to comment ontheInnovation Actinthefuture and we may have a fewadditional comments about the draft legislation inthe future Fornow however wewish tooffera comment about Section 6 of H R 3309 which it maybeuseful tohearsooner rather thanla te r.

Inits current form Section 6 requires the Judicial Conference to develop rules toimplement therequirements described intheAct that are intended to address asymmetries indiscovery burdens andcostsin patent litigation In doingso Section 6 setsforth the content ofthe civil rules that theJudicial Conference is expected to develop through theRules CommitteesWegreatly appreciate andshare thedesire to improve thecivil justice system inourfederal courts including byreducing abusive procedural tactics inpatent litigation Butlegislation that mandates the contents of the federal rules contravenes the longstanding JudicialConference policy opposing direct amendment of the federal rules bylegislation instead of

8/13/2019 Judicial Conference of the United States - Section 6 of Innovation Act, H.R. 3309

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Honorable John Conyers Jr.November 6 2013Page 2through the deliberative process Congress established in the Rules Enabling Act 28 U.S.C. 2071 2077. Congress passed the Rules Enabling Act tocreate a thorough and inclusiveprocess for addressing procedural problems in the federal courts. Under that process the RulesCommittees collect information that is essential to promulgating effective rules bycommissioning empirical studies analyzing relevant case law and consulting with experts andothers with direct experience in the area. Proposals for change are published for public commentand thoroughly analyzed bytheCivil Rules Committee the Standing Rules Committee theJudicial Conference the Supreme Court and Congress. This multi layered process ensures athorough evaluation of proposals while reducing the ever present riskof unintendedconsequences.

Bydictating theoutcome oftheRules Enabling Act process with respect to potentialrules Section 6 ofH.R. 3309 runs counter to that process. We worry that this kind ofapproachmore often will undermine rather than further the development ofsound rules and practices.Instead ofmandating the outcome of the Rules Enabling Act process. Congress may wish tourgethe Judicial Conference s Rules Committees to studywhether certain rulesshould be amended toaddress abusive patent litigation tactics and/or to implement the provisions ofthehinovation Act.That approach would allow Congress to express its interest in addressing these problems andwould respect the long established virtues ofthe deliberative processes created bythe RulesEnabling Act.

The Rules Committees and the other relevant Judicial Conference committees willcontinue to study the bill. Ifadditional concerns are identified they will becommunicated to youas soon aspossible. Fornow however we want toletyou know immediately about our specificconcerns with Section 6. The Rules Enabling Act process hasworked well for the last 80yearsor so and wehope toseethis collaborative partnership continue to work well long into thefuture. Thank you for considering our concerns. Ifyou oryour staff have any questions pleasedo not hesitate to contact usor Benjamin Robinson Deputy Rules Officer and Counsel at202 502 1820.

Sincerely

Jeffrey S. Sutton David G. CampbellUnited States Circuit Judge United States District JudgeSixth Circuit District of ArizonaChair Committee on Rules Chair Advisory Committeeof Practice arid Procedure on Civil Rules

cc: Democratic Members of the HouseCommittee on the JudiciaryIdentical letter sent to : Honorable Bob Goodlatte