If You Can't Beat 'Em, Join 'Em? How Sitting by Designation Affects Judicial Behavior

Judges, lawyers, and scholars have long decried the high reversal ratedistrict judges face in patent cases. Many have suggested greater districtcourt specialization as a solution, and Congress in 2011 enactedlegislation to promote such specialization. In this paper, we investigatethe impact of a novel measure of experience – whether a district courtjudge has sat by designation on a Federal Circuit panel in a patent claimconstruction appeal – on the likelihood a district judge’s subsequent claimconstructions are reversed. Before sitting by designation, judges who laterdo so actually have a slightly higher claim construction reversal rate thanjudges who never do so. After sitting by designation, the reversal rate ofdistrict court judges on subsequent claim construction appeals decreases by50 percent. This decrease is not fully explained by other measures ofexperience, including the number of prior patent cases or years on thebench. Nor is it fully explained by the timing of the appeal, theparticular district court judge or various other characteristics of thepatents, the parties and the litigation. Our results suggest a simple wayto reduce the reversal rate in patent and perhaps other sorts of cases.However, our evidence suggests this increased agreement is due to increasedFederal Circuit trust in the decisions of individual judges who have sat bydesignation and not increased district judge understanding of claimconstruction.