Immigration Bill Spooks Patent Bar

Members of the patent bar have joined the immigration reform debate. A bill being debated by the Senate Judiciary Committee that would transfer jurisdiction over appeals of deportation orders from the regional court of appeals to the Federal Circuit U.S. Court of Appeals has ignited cries of protests from patent lawyers.

The Comprehensive Immigration Reform Act of 2006, sponsored by Sen. Arlen Specter, R-Penn., affects many aspects of immigration policy and security in addition to changes in H-1B and green-card laws. But what alarms many patent attorneys is the provision in the 300-page bill that would shift the burden of reviewing thousands of deportation appeals to the CAFC, which has nationwide jurisdiction over patent appeals.

The bill calls for increasing the number of judgeships on the Federal Circuit from 12 to 15 to accommodate the additional workload, but patent attorneys say the three more judges would not be enough to handle the arrival of 12,000 immigration appeals now clogging appeals court dockets around the country.

“The infrastructure of the Federal Circuit is not equipped to handle such a large influx of additional appeals,” said Edward Reines, a patent litigation partner at Weil, Gotshal & Manges and vice president of the Federal Circuit Bar Association. “There is a real risk that the adjudication of patent appeals will be adversely affected if the Federal Circuit is forced to resolve all immigration appeals.”

Judge Richard Posner of the 7th Circuit U.S. Court of Appeals also criticized the bill. In a letter addressed to Democratic Senator Richard J. Durbin, Posner said the proposed transfer of jurisdiction would “disserve the judiciary and the immigrant community.”

“I cannot think of an area of law that is more remote from immigration than patents,” Posner wrote. “No doubt the judges of the Federal Circuit can become knowledgeable about immigration law; but they will be overwhelmed by the new caseload.”

Posner calculated that even with the three additional judges proposed in the legislation, each of the 15 Federal Circuit judges would be responsible for about 820 immigration cases per year, on average.

Reines said he expects there will be a lot of resistance to the proposal from the Federal Circuit community and from intellectual property groups, not to mention immigration attorneys.

“Requiring immigration attorneys to travel to the Federal Circuit every time they have to argue an appeal, on first blush, does not appear fair or practical,” he said.

Xenia P. Kobylarz

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