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Dec 2 (Reuters) - Expectations of a massive federal court case backlog brought on by courthouse closures and other COVID-19 pandemic-related disruptions did not come to fruition thanks to a decline in arrests and newly-filed lawsuits, according to a new study. The Federal Judicial Center, the federal judiciary's research arm, in a report, opens new tab released this week confirmed that the pandemic led to a nationwide slowdown in criminal and civil cases as public health concerns delayed trials. But, the report found those backlogs on a national level were offset by a comparable 29% decline in federal prosecutors charging new defendants during the first two years of the pandemic and litigants filing 6% fewer civil cases during that period. "Courts were able to effectively clear their dockets despite pandemic-related delays at least in part because fewer new criminal defendants and civil cases came on to their dockets during the pandemic," the report said. Researchers found that while about two-fifths of district courts emerged from the pandemic's second year with more pending cases than expected, on a national basis case backlogs had returned to pre-pandemic levels by March 2022. The study's authors noted their numbers for civil cases were ultimately just estimates as they excluded the thousands of lawsuits consolidated in multidistrict litigation proceedings due to a lack an established convention for counting them. MDLs comprised over 70% of the federal civil caseload in 2021. Seen here at an earlier court appearance, Hwang was found guilty on 10 of 11 criminal counts with his deputy Patrick Halligan also convicted. The lack of a severe backlog came despite expectations in the early days of the pandemic that pending cases would quickly accumulate and exacerbate federal case backlogs as courts closed their doors and suspended jury trials to slow the virus's spread. Two years after the U.S. government in March 2020 declared COVID-19 a national emergency, the median criminal and the civil case moved through the federal courts 44% and 7% slower, respectively, than compared to recent pre-pandemic years. The study said that trend was driven by a decline in cases being resolved. While courts allowed for virtual hearings, jury trials could not be easily moved online, resulting in their suspension at the pandemic's outset prior to the widespread use of vaccines, which eliminated an incentive for parties to plead guilty or settle, the report said. The sharpest declines in trials were in criminal cases, with the number of jury trials falling 52% in the first year of the pandemic compared to the five-year pre-pandemic average and remaining 27% down from that average in the second year, the report said.

Florida’s trial courts and the state’s lawyers are collaboratively working through the pandemic induced backlog of cases and progress is being made. That’s the message Chief Justice Charles Canady delivered in his annual state of the judiciary commentary at the Supreme Court Historical Society’s annual Supreme Evening event April 7 in Tallahassee. “I am pleased to report on this occasion the state of our court and of the Florida judiciary is strong,” Canady told a full house in brief remarks at the event that was held in-person for the first time since the onset of the pandemic in 2020. The chief justice said he was “proud to report” a nearly 30% reduction in the overall backlog of cases in the trial courts since July 1 of last year. “That is a lot of progress,” Canady said. “And through aggressive case management, circuit civil and county civil have seen a 50% reduction in the backlog and that far exceeds what we anticipated and it is only happening because a lot of judges and a lot of lawyers are working hard to move those cases forward to resolution.” Acknowledging the past few years have been stressful for both judges and practitioners alike in the trial courts, Canady said the courts had no choice but to “take steps to aggressively address the backlog or it would be with us for years and years.” He said the courts and other governmental institutions have faced unprecedented strains, but have withstood those stresses, underscoring the importance of an independent judicial branch. “Like the rest of the world, we have been through a difficult time and like the rest of the world, we are trying to figure out exactly what the new normal will look like,” Canady said. While unable to address specifics on what form that “new normal” may take, Canady alluded to proposed changes now moving through rules process. A sweeping rules petition filed by the Supreme Court’s Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 designed to promote permanent, broader access to remote court proceedings was argued in February. The Judicial Management Council’s Workgroup on Improved Resolution of Civil Cases is also advancing a host of procedural rule changes that would impose more judicial control on civil cases, tighten rules (including tougher sanctions) for discovery, depositions, and continuances, and have reports to the Supreme Court when judges don’t expeditiously rule on motions and decide cases. “Our trial courts are working hard to deal with the pandemic generated backlog and it is an enormous backlog, but I appreciate the work that is being done in the trial courts across the state every day to address it,” Canady said. Canady, concluding his third term as chief justice June 30, received a standing ovation from those in attendance for his guidance of the court system though the pandemic.

The Illinois Supreme Court has launched a pro bono pilot program to reduce the backlog of criminal appeals in the state. During the six-month pilot, which was announced on Feb. 11, volunteer pro bono attorneys will substitute as counsel for lawyers in the Office of the State Appellate Defender (OSAD) in certain criminal appeals. The pilot will include direct appeals in jury and non-jury cases with records of 1,300 pages or less. Oral arguments will be encouraged so pro bono attorneys can gain experience arguing before the appellate court. The pilot will launch in the First and Second Districts of the Appellate Court. If the pilot yields positive results, it will be expanded to the Third, Fourth, and Fifth District Appellate Courts. “The backlog of criminal appeals cases presents a serious access to justice problem that is of great concern to the Supreme Court,” said Illinois Supreme Court Chief Justice Anne M. Burke in a press release. “Similar programs have been used in other states to help reduce backlogs. We look forward to the program’s successful implementation in the initial test phase and to its eventual implementation throughout the state.” Second District Appellate Court Justice Donald C. Hudson, chair of the Appellate Court Administrative Committee, and First District Appellate Court Justice Bertina E. Lampkin, member of the Appellate Court Administrative Committee, spearheaded the organization of the criminal appeals pilot. The Administrative Office of the Illinois Courts is providing managerial assistance. Attorneys can apply by completing the Volunteer Attorney Application on the Court’s website. Applicants must have prior experience as appellate counsel or as a supreme court or appellate court clerk. Additional criteria for participation includes a valid license to practice law in Illinois for a minimum of five years (or admission in Illinois under Supreme Court Rule 707), up-to-date malpractice insurance, and no ARDC disciplines. Applicants who don’t meet the criteria may still be accepted if they agree to work under the supervision of an attorney who has the requisite experience and is approved for the program. The OSAD offers online video training on appellate advocacy for volunteer attorneys and provides resources on its website to aid in the preparation of a brief.

The number of America Invents Act petitions filed at the Patent Trial and Appeal Board decreased in 2023, according to a new report from Lex Machina — a dip that attorneys attribute to an overall drop in patent litigation. Parties filed 1,157 petitions for inter partes review in 2023, the fewest in the 10 years tracked by the Lex Machina litigation report. That’s a decline from the approximately 1,300 IPR petitions filed in each 2021 and 2022. ​ Attorneys talking to Law360 said policies from the U.S. Patent and Trademark Office director should have made it so that filings went up, not the other way around. The decline, they said, is likely due to a decrease in infringement litigation, the filing of which often triggers alleged infringers to pursue PTAB challenges. “There’s your [basic] type of breadcrumb trail there,” said Paul Hastings LLP partner Joe Palys. “If there are fewer cases being filed, there are fewer reasons to file an IPR.” Just under a decade ago, more than 5,000 patent suits were filed in district courts, but filings have been falling over the years, reaching a low of 3,111 in 2023, according to the report. At the PTAB, Lex Machina said there was a drop in overall filings at the board in 2019 that “stabilized at a lower range of numbers through 2023.” The report attributes the dip, in part, to adjusting standards of reviews and policies aiming to stop overlapping reviews. The number of post-grant reviews, which have always been relatively low — peaking at 83 in 2021 — had a near-invisible decrease in 2023, with 34 petitions, down from 35 in 2022. Covered business method reviews are still counted in the 10-year Lex Machina data, but no petitions have been filed since 2020, when the PTAB stopped accepting those challenges. PTAB trends “often ebb and flow” based on the rate of district court litigation, according to O’Melveny & Myers LLP partner Tim Fink, who previously served as a high-ranking administrative patent judge. Over the past decade, attorneys working at the PTAB have become better at filing fewer, but higher quality, petitions, Fink said, especially since the use of multiple petitions is often not favored by the board. USPTO Director Kathi Vidal in April released a massive notice of changes the agency was considering pursuing, and she specifically proposed limiting when PTAB judges can accept multiple petitions against a single patent. The director made clear that the challenger needs to show a good reason to file several petitions challenging the same patent, whether they’re in quick succession or at the same time. The most significant change at the board, though, has been creating more certainty about when litigation in district court could lead to the PTAB denying a petition to avoid duplicative work, under precedent called Fintiv. Guidance released by the director in 2022 made the PTAB’s application of Fintiv more predictable, which attorneys say should have led to an increase in petitions. The biggest element of stability has been the normalization of petitioners stipulating that if the PTAB accepts the petition, the challenger won’t raise the same invalidity arguments, or arguments that reasonably could have been raised, in the related litigation. These stipulations protect patent owners from facing the same challenge in two forums, which was a big part of why Fintiv exists. “Parties now know that they can most typically obviate [Fintiv denials],” said Eldora Ellison, co-head of Sterne Kessler Goldstein & Fox PLLC’s PTAB trials practice. Judges also can discretionarily deny petitions for presenting prior art or arguments that the USPTO already saw during prosecution or other agency proceedings, a factor Ellison said challengers have become smarter about taking into consideration when deciding to request help from the board. “Stakeholders may look at a given patent and its prosecution history, and based on the facts there, may be less inclined to file an IPR than they might have been in 2013,” she said. Potential challengers also may be drawn to the USPTO’s new director rehearing process, which provides a path for parties to challenge rejected petitions for the first time, Palys said. That change should be attracting alleged infringers though, not pushing them away, he said. Overall, the fact that there’s a decline is surprising, as it doesn’t appear that way on the ground, according to Palys. But if numbers are going down, he said, there could be a few reasons, including that accused infringers may not want to pursue a PTAB challenge with a stipulation aimed at Fintiv, when it would mean giving up the right to make certain invalidity arguments in litigation. “That really handcuffs you in the district court,” Palys said. In addition, a decline could come from factors unrelated to patent strategy, with technology clients in particular needing to use their funds on something other than pricey PTAB proceedings, he said. Palys further suggested that it has become harder to prove patents should be invalidated as obvious, which is a key objective in many PTAB petitions.

The federal Judiciary uses a wide array of initiatives—including advanced technology, cost reduction and aggressive auditing—to deliver justice efficiently, while enhancing public access to and knowledge of the courts, according to testimony delivered July 6 to a House Judiciary subcommittee. “As the Third Branch performs its constitutional duties,” said James C. Duff, Director of the Administrative Office of the U.S. Courts, “we are focused on being good stewards of the resources Congress has provided, while also meeting the needs of the litigants and the public.” Duff testified before the Subcommittee on Courts, Intellectual Property, and the Internet, about “the Judicial Branch and the Efficient Administration of Justice.” Written testimony also was submitted by U.S. District Chief Judge Rodney W. Sippel, of the Eastern District of Missouri. In his testimony, Duff noted that federal court caseloads have increased nearly four-fold in the last 50 years, while judgeships only doubled. “The fact that our judges and courts are meeting many of the challenges of increasing caseloads is a testament to the efficiencies in our court system,” Duff said. Duff cited several initiatives to deliver justice efficiently and cost effectively, while also enhancing public access. Effective case management, including the use of visiting judges, helps courts with heavy caseloads, while magistrate judges and senior judges help manage caseloads in all courts. Shared Administrative Services and work measurement analyses have reduced total court staffing requirements by nearly 3,900 full-time equivalent positions since 2011. Refined budget formulations, and an aggressive auditing program and other fiscal controls, have led to savings. Court space reduction by 3 percent by the end of fiscal year 2018. Information technology improvements, including centralized hosting services and a national videoconferencing service, have reduced individual court costs. Electronic case filing and Public Access to Court Electronic Records (PACER) have made court documents readily available to the public, while the Government Printing Office provides free access to court opinions. EJuror provides electronic registration for jurors, while Debtor Electronic Bankruptcy Noticing, has reduced notification costs.

The report also identifies emerging trends to watch that could have significant implications for everyone involved in the IP industry, such as the backlog of pending cases in courts across the nation and activity of various district courts around the country. Successfully forging ahead, both IP firms and corporations will need to stay alert to changes in the industry, and appropriately formulate and execute their corporate IP strategy. The 2023 Patent Litigation report covers high-level statistics, including information on all parties, judges, and cases, from July 1, 2017, through June 30, 2022. A total of 18,493 cases were filed during this period, involving 1,322 district court judges, 20,065 companies, 17,052 attorneys (including local counsel), and 3,608 law firms. As seen above, 78.8% of the cases are terminated within a year, while the remaining 21.2% require more than a year. Looking closer, more than half of the cases are terminated within the first six months, while 11.4% of the cases are taking more than 18 months to be resolved.

U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal published a Director’s blog post today addressing the Office’s current backlog of patent and trademark applications, which the latest USPTO data shows to be 785,387 unexamined applications/ 25.6 months total pendency for patents and 14.5 months total pendency for trademarks. Vidal said in her blog post that “unpredictable macro effects, including a pandemic that had an outsized impact on our application inventories, have created an ‘inherited backlog’ of both patent and trademark applications.” She added that the predicted slowdown in patent filings for 2020 and 2021 turned out to be “more modest and short-lived than expected” and this contributed to the backlog, since hiring targets were reduced. According to the Office’s recent Notice of Proposed Rulemaking (NPRM) on Setting and Adjusting Patent Fees, the present backlog is predicted to increase to 820,200 by FY 2026 before decreasing to 780,000 by FY 2029. Sources have told IPWatchdog that the current 785,387 total backlog may be near or at an all-time high, though the USPTO could not confirm that by the time of publication. Total pendency for patents as of May 2024 was 25.6 months and 20 months for a first office action. Vidal wrote that, in response to examiner suggestions, the Office began routing patent applications in 2022 “to increase the likelihood that a patent application would be assigned to an examiner with the right technical background in the first instance,” has extended working hours, and recently secured an increase in the special rate table that applies to nearly 9,000 patent professionals. “Moreover, we made adjustments in our award structures to better attract and reward employees who make meaningful contributions to our pendency and quality goals,” wrote Vidal. The Office also hired 644 patent examiners in FY 23 and is on target to exceed its goal of hiring 850 examiners in FY 24, she said. This push will continue through FY 25. As for trademarks, Vidal said that during the pandemic “more people started their own companies, launched new products, increased cross-border e-commerce, and filed trademark applications to improve their brand protection.” This led to “unprecedented” application levels for those years. Additionally, some of the applications filed in 2020 and 2021 were fraudulent; the Office has since addressed this by shifting its fraud-related work to the Register Protection Office in June 2023. Source: USPTO In FY 23, average annual first action pendency for trademarks was 8.5 months; as of Q2 2024, first action pendency was at 8.2 months and total pendency was 14.5 months. But Vidal said in her post that “average annual first action pendency has decreased to 7.85 months and is dropping.” She attributed this to three key changes: 1) IT improvements, 2) shifting the “exceptional office action standard” from first action to final action, and 3) new incentives for first action productivity for examiners. Total trademarks inventory as of Q2 2024 was 1,354,718. Source: USPTO Vidal outlined a number of other efforts the Office is undertaking to address the backlogs, including recent and upcoming IT updates. She suggested stakeholders should send ideas for reducing pendency to her directly. In 2007, due to concerns about the USPTO backlog of 730,000 unexamined patent applications at the time, the Government Accountability Office (GAO) presented a report to Congress that found the Office’s hiring efforts were not sufficient to reduce the backlog. The backlog subsequently decreased over time, after various new approaches to hiring were implemented.

The number of America Invents Act petitions filed at the Patent Trial and Appeal Board decreased in 2023, according to a new report from Lex Machina — a dip that attorneys attribute to an overall drop in patent litigation. Parties filed 1,157 petitions for inter partes review in 2023, the fewest in the 10 years tracked by the Lex Machina litigation report. That’s a decline from the approximately 1,300 IPR petitions filed in each 2021 and 2022. ​ Attorneys talking to Law360 said policies from the U.S. Patent and Trademark Office director should have made it so that filings went up, not the other way around. The decline, they said, is likely due to a decrease in infringement litigation, the filing of which often triggers alleged infringers to pursue PTAB challenges. “There’s your [basic] type of breadcrumb trail there,” said Paul Hastings LLP partner Joe Palys. “If there are fewer cases being filed, there are fewer reasons to file an IPR.” Just under a decade ago, more than 5,000 patent suits were filed in district courts, but filings have been falling over the years, reaching a low of 3,111 in 2023, according to the report. At the PTAB, Lex Machina said there was a drop in overall filings at the board in 2019 that “stabilized at a lower range of numbers through 2023.” The report attributes the dip, in part, to adjusting standards of reviews and policies aiming to stop overlapping reviews. The number of post-grant reviews, which have always been relatively low — peaking at 83 in 2021 — had a near-invisible decrease in 2023, with 34 petitions, down from 35 in 2022. Covered business method reviews are still counted in the 10-year Lex Machina data, but no petitions have been filed since 2020, when the PTAB stopped accepting those challenges. PTAB trends “often ebb and flow” based on the rate of district court litigation, according to O’Melveny & Myers LLP partner Tim Fink, who previously served as a high-ranking administrative patent judge. Over the past decade, attorneys working at the PTAB have become better at filing fewer, but higher quality, petitions, Fink said, especially since the use of multiple petitions is often not favored by the board. USPTO Director Kathi Vidal in April released a massive notice of changes the agency was considering pursuing, and she specifically proposed limiting when PTAB judges can accept multiple petitions against a single patent. The director made clear that the challenger needs to show a good reason to file several petitions challenging the same patent, whether they’re in quick succession or at the same time. The most significant change at the board, though, has been creating more certainty about when litigation in district court could lead to the PTAB denying a petition to avoid duplicative work, under precedent called Fintiv. Guidance released by the director in 2022 made the PTAB’s application of Fintiv more predictable, which attorneys say should have led to an increase in petitions. The biggest element of stability has been the normalization of petitioners stipulating that if the PTAB accepts the petition, the challenger won’t raise the same invalidity arguments, or arguments that reasonably could have been raised, in the related litigation. These stipulations protect patent owners from facing the same challenge in two forums, which was a big part of why Fintiv exists. “Parties now know that they can most typically obviate [Fintiv denials],” said Eldora Ellison, co-head of Sterne Kessler Goldstein & Fox PLLC’s PTAB trials practice. Judges also can discretionarily deny petitions for presenting prior art or arguments that the USPTO already saw during prosecution or other agency proceedings, a factor Ellison said challengers have become smarter about taking into consideration when deciding to request help from the board. “Stakeholders may look at a given patent and its prosecution history, and based on the facts there, may be less inclined to file an IPR than they might have been in 2013,” she said. Potential challengers also may be drawn to the USPTO’s new director rehearing process, which provides a path for parties to challenge rejected petitions for the first time, Palys said. That change should be attracting alleged infringers though, not pushing them away, he said. Overall, the fact that there’s a decline is surprising, as it doesn’t appear that way on the ground, according to Palys. But if numbers are going down, he said, there could be a few reasons, including that accused infringers may not want to pursue a PTAB challenge with a stipulation aimed at Fintiv, when it would mean giving up the right to make certain invalidity arguments in litigation. “That really handcuffs you in the district court,” Palys said. In addition, a decline could come from factors unrelated to patent strategy, with technology clients in particular needing to use their funds on something other than pricey PTAB proceedings, he said. Palys further suggested that it has become harder to prove patents should be invalidated as obvious, which is a key objective in many PTAB petitions.

Portfolio Media. Inc. | 111 West 19th Street, 5th Floor | New York, NY 10011 | www.law360.com Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | customerservice@law360.com Patent Suits Mostly Stayed Level In 2022, Yet Appeals Fell By Ryan Davis Law360 (February 15, 2023, 12:14 AM EST) -- The number of new patent lawsuit filings dipped only slightly in 2022, continuing years of relatively stable litigation activity amid few major changes in the law, while a drop in patent appeals from district courts may be tied to court slowdowns during the pandemic, attorneys say. There were 3,820 patent cases filed nationwide in 2022, 189 fewer than the 4,009 filed in 2021, according to a new report from Lex Machina. But the number of new patent cases has held fairly steady since 2017, hovering between about 3,600 and 4,000 each year. The slightly lower number of new cases last year can likely be attributed to natural fluctuations from year to year, but the largely consistent figure over six years indicates that "patent litigation activity is stabilizing within that band," said Robert McFarlane of Hanson Bridgett LLP. Over 5,000 patent cases were filed each year between 2013 and 2015, but the advent of the America Invents Act and recent U.S. Supreme Court decisions limiting what is eligible for patents and where infringement suits can be filed likely contributed to the subsequent drop in new cases, he said. "The cumulative effects of those court decisions and then the AIA have been felt," McFarlane said. And since a venue decision in 2017, nothing more has happened "that really shakes up the litigation environment for patent cases. So that's probably one of the reasons that they've kind of stabilized where they are now," he said. Jason Balich of Wolf Greenfield & Sacks PC said it is notable that new patent suit filings have held steady despite worries about the economy in recent months, which he said suggests "folks have realized that patent litigation is totally independent from the stock market." "The proof of that is all of the interest in litigation funding," he said. Investors have been attracted to funding patent cases "because it is sort of a constant return, no matter what happens in the larger economy," Balich said. In contrast to the steady flow of new cases, the Lex Machina report found 2022 had an unusually low number of appeals docketed in patent cases originating in district courts. There were only 171 such appeals, down from 316 in 2021, and by far the lowest number in at least a decade. While the COVID-19 pandemic does not appear to have had much of an effect on new lawsuits, it did impact how pending cases proceeded. Many courts called off jury trials in 2020 and 2021, which may have led to fewer decisions that could be appealed last year, attorneys said. "During the pandemic, case schedules were frequently extended far beyond typical case durations, and meanwhile, many cases settled that otherwise might not have," said Paul Schoenhard of Fried Frank Harris Shriver & Jacobson LLP. "As a result, I don't find it particularly surprising that the number of new appeals was down." As trials have begun to ramp back up, judges may now be facing a higher than usual number of motions for summary judgment and post-trial briefing that they have yet to rule on. The courts "did a heroic job during COVID to keep the trains running on time," said Michael Lindinger of Mayer Brown LLP. "But I think the busier patent courts are probably still digging out of a lot of backlog." As judges work their way through that, "it'll take a couple years, but [appeals] will probably come back to where those numbers used to be," he said. The busier patent courts have certainly stayed busy. According to the report, from 2020 to 2022, three courts heard more than 53% of all patent cases: the Western District of Texas, the District of Delaware and the Eastern District of Texas. The Western District of Texas was the most popular patent court over the three-year period, with 2,711 cases, compared to 2,286 in Delaware. Waco-based Judge Alan Albright, a former patent litigator who has encouraged plaintiffs to file suits in the Western District of Texas, has driven a significant number of cases there. Yet the number of cases filed in the Western District of Texas dropped from 981 in 2021 to 867 in 2022. That may be due to new rules the district implemented in July that call for patent cases filed in Waco to be randomly assigned to judges instead of automatically going to Judge Albright as they did before, a change that is still playing out. Even so, because a large number of patent lawsuits are against technology companies, and many of those businesses have a presence in the Western District of Texas and can be sued there under the Supreme Court's venue ruling, the district will likely continue to be an important part of the patent map, Mayer Brown's Lindinger said. "I think the Western District is going to continue to be an attractive venue to file patent cases, even if some of them ultimately do get transferred. There are so many tech companies down there," he said. Patent plaintiffs continue to gravitate toward the same few courts because they are known quantities at this point, according to Balich of Wolf Greenfield. "Plaintiffs are looking for certainty and predictability, and anytime you have a district that is very familiar with patent litigation and has set rules on how it's going to play out, you achieve that predictability, and in some sense, that can be more important than anything else," he said. While patent suit filings dropped slightly overall, the number of patent infringement suits over abbreviated new drug applications, or ANDAs, for generic drugs ticked upward slightly in 2022 to 264, the report found. That was only 10 more than the 254 filed in 2021, but the increase stood out since ANDA cases had previously fallen every year since 2017. The generic drug industry is unique in that it almost requires patent litigation before a product enters the market, so "the number of ANDA cases has more to do with the number of new drugs coming out onto the market than anything else," Balich said. The report also identified the most prolific patent plaintiffs from 2020 to 2022, a list that was dominated by patent licensing companies. At the top was a company called Cedar Lane Technologies Inc., which filed 336 suits over the three-year period, including 176 in 2022, predominantly over computer imaging patents. In second place was WSOU Investments LLC, which filed 205 suits involving wireless communications patents over the three years, although the bulk of them were filed in 2020. The next place on the list was taken by Bell Semiconductor, which filed 106 suits over circuit patents, nearly all of them in 2022. The report's list of the companies sued most often over the past three years was led by the biggest names in technology: Samsung, Google, Apple, Microsoft and Amazon. --Editing by Jill Coffey and Lakshna Mehta. Note: Law360 is owned by LexisNexis Legal & Professional, a RELX company, which owns Lex Machina.

2023 was an eventful year for the patent world. The USPTO sought comments on the ANPRM and Patent Eligibility Restoration Act. The Unified Patent Court (UPC) launched. Pressure mounted in the EU to create a SEP commission. Despite the implemented changes or those proposed, litigation levels remained constant. IP Edge continues to be notably absent, but others, like Jeffrey M. Gross and Intellectual Ventures, have increased their assertions.Highlights: Litigation was down 12.5%, PTAB was down 11.4%, and Reexams were up 6.7% With disclosure requirements and referral for disbarment in Delaware, the EDTX became the hotspot for NPE activity, although the WDTX was only 54 cases behind. Litigation remained on par quarter-by-quarter with a standard deviation of 28.2 cases, even without IP Edge.

News abounds on the political and ideological ramifications of the record pace of White House nominations and Senate confirmations for the federal judiciary. This accelerated confirmation process marks a dramatic reversal from just last year, when judicial vacancies hit an all-time high. Politics notwithstanding, litigants need to consider the practical effects of this record shift in judicial appointments on the vast majority of disputes, where ideology and partisanship are not factors. More capacity will accelerate case schedules impacting litigants who have grown accustomed to — and in some cases have depended on — the often slow pace resulting from clogged case dockets. Now that the federal bench is gaining significant additional capacity, how will this change litigation strategies, forum selection, and costs? And will the new additions to the judiciary reflect the diversity of the United States? As a whole, these questions hang over litigants whose approach to federal litigation developed in a judicial system frequently lacking adequate capacity to handle its overall caseload. Judicial Appointments by the Numbers No longer affected by filibuster rules, the Senate has confirmed 32 federal court nominees (excluding U.S. Supreme Court Justice Neil Gorsuch) — the most ever at this point in an administration’s first term. Half of these judges are now serving in the courts of appeal, while the other half fill district court vacancies. According to the Administrative Office of the U.S. Courts, nearly 70 nominees are pending, which, if confirmed — as many judicial observers believe likely — will make a significant dent in the current total of 149 vacancies across appellate and district courts. Even so, the numbers still show the nation’s federal court system is far from operating at optimum capacity. As of April 2018, the U.S. Administrative Office of the Courts classified 72 federal court vacancies as “emergencies.” Compounding the crunch, government data show 44 percent of federal judges are now eligible for senior status. Replenishing the Judiciary Is Mission-Critical “Politics aside, the impact of quickly filling vacant judicial seats will reverberate through the entire federal court system,” says Joseph W. Hatchett, a former Eleventh Circuit Court of Appeals chief judge and co-chair of Akerman’s Appellate Practice. “Having a full court staffed with judges will be good for the American judicial system,” says Hatchett. “I’m happy to see the Senate appointing judges quickly.” After having served for four years on the Florida Supreme Court, President Carter appointed Hatchett to the Fifth Circuit Court of Appeals in 1979. He then moved to the Eleventh Circuit after Congress created it in 1981; Hatchett served on that bench until 1999. Along the way, he has achieved many firsts, including as the first African American appointed to the Florida Supreme Court since Reconstruction, and the first ever elected to public office in a statewide election in the South. With the rapid increase of the number of cases handled by the federal court system every year, Hatchett notes the need to fill vacancies could not be more glaring. For instance, the Southern District of Florida, which in 2017 saw 11,434 cases filed, currently has five vacancies, among the highest in the country. Hatchett says his former colleagues on the federal bench tell him they have been doing the jobs of two or even three people and welcome more support. Judicial observers note the administration is currently vetting a list of candidates with the final five nominees expected in 2018[1]. “My former colleagues are glad to see these seats being filled,” Hatchett says. Judicial Staffing and Litigation Strategies The vast majority of cases, especially in district court, are fact-based disputes that do not have constitutional or policy implications, says Hatchett. “Beyond politics, we need a sufficient number of judges to make our courts work,” he says. “Litigants are increasingly turning to alternative dispute resolution, not because it’s necessarily better, but because they can’t wait two or three years to get their cases resolved.” This is especially true for corporate litigants, who need certainty and timeliness in outcomes, says Hatchett. With time and litigation cost carrying such a heavy influence on the bottom line, the availability of alternative venues to settle disputes provides several concrete advantages, though parties must recognize what the tradeoff is for speedier resolutions. For instance, when parties resolve disputes via arbitration, the options to appeal an arbitral award are limited, and parties appealing a “wrong” decision face a difficult battle. Examining the pros and cons of arbitration in Law360[2], Luis A. Perez, co-chair of Akerman’s Latin America and the Caribbean Practice, says, “[A]ppellate review of a final arbitration award is quite limited under the Federal Arbitration Act…” Perez also notes the U.S. Supreme Court in Oxford Health Plans LLC v. Sutter stated, “Courts may vacate an arbitrator’s decision ‘only in very restricted and unusual circumstances.’” That is why the increasing opportunity to move cases more quickly through the courts should not be lost on attorneys, Hatchett says. The judiciary will become more efficient as vacancies decrease, and disputes will move through district and appellate courts at a faster pace. Most disputes likely will continue to settle, Hatchett says, but “those cases that should go to trial are more likely to do so.

As the coronavirus shifted from distant possibility to dire reality in March 2020, chief judges in federal courts nationwide acted quickly to stem its spread. Chief U.S. District Judge James Bredar reluctantly suspended nonemergency hearings and canceled jury trials in Maryland only after its governor announced he was activating the National Guard and closing public schools. At the same time though, Judge Bredar worried his order curtailing court operations would run afoul of criminal defendants' constitutional rights and lead to a caseload clog. "Unquestionably when we come out the other side of this event, dockets will be very crowded, and we will need to make up for lost time," he told Law360 in March 2020. Now, with his court having returned to normal operations, Judge Bredar says the backlog was manageable. "It wasn't as though there was a three-year accumulation of cases, because the pandemic was experienced, at least in our court, very much in waves," he recently told Law360. "A backlog still accumulated, just not a terrible one." In fact, Maryland's weighted caseload — a statistic the federal judiciary calculates by analyzing each district's docket for complexity, then dividing the result by the number of allotted judgeships — is lower now than it was before the pandemic. In the year ending on March 31, 2020, there were an average of 426 weighted filings per judgeship. As of March 2023, there were 379. That reflects a nationwide shift. By the end of March, the U.S. average for weighted caseload was the lowest it's been in five years. But even with fewer cases on judges' plates, the pace of justice has slowed. By the end of March, civil litigation lasted nearly three months longer than before the pandemic, marking a 29% increase, and criminal felony case durations spiked 64%, taking more than four months longer to resolve, according to new statistics from the Administrative Office of the U.S. Courts. Though the coronavirus public health emergency has ended, its aftershocks are still being felt in federal courts, leaving both litigants and criminal defendants in a holding pattern. Advocates worry access to justice may depend on what year litigation was filed or when a defendant was arrested. It's a phenomenon that defense attorneys like Nellie King have noticed, as criminal clients wait months longer for their day in court amid a "flood and a frenzy to get this backlog cleared." "They're sitting in jail or out on release for extended periods of time," said King, who practices in West Palm Beach, Florida, and serves as president of the National Association of Criminal Defense Lawyers. "When we have a presumption of innocence, and you can't clear your name or get back to your family or your work life in a somewhat timely fashion — so that it is not years down the road as far as resolution — then you're just kind of in limbo." A Slowdown In the years leading up to the pandemic, new federal court filings were climbing, with an 18% national uptick between April 2017 and the end of March 2020. Federal prosecutions fell in 2020, as violent crime dropped 22% compared to 2019, according to data from the Bureau of Justice Statistics. New civil filings spiked in the first year of the pandemic, driven by a dramatic increase in civil personal injury and product liability filings, which more than doubled thanks to multidistrict litigation in Florida over allegedly faulty combat earplugs. New filings eased back down the following year and have continued to decline. By March, they'd hit their lowest level since 2017. "Case filings likely decreased during the pandemic because of the perception that courts weren't effectively open for business and that, temporarily at least, it was not an effective way to resolve disputes in an expeditious manner," according to Jim Sandman, the former president of the Legal Services Corp., who chaired an American Bar Association task force formed to handle legal needs arising from COVID-19 as the disease began to spread in the U.S.While attorneys were watching the statute of limitations on time-sensitive cases, they were also putting litigation on hold, according to U.S. District Judge John Tunheim, who from 2015 until last June served as chief judge of the District of Minnesota. "I heard from lawyers, 'Well, we're kind of hanging on to a number of cases. Likely we'll file them once the court is open again,'" he said. "Now, we were open the whole time. But we were open electronically, really." Yet the decline in new filings was "masked by the pandemic," according to U.S. District Judge F. Dennis Saylor IV, chief judge of the District of Massachusetts. "There were delays in resolving civil cases, especially big ones that required a lot of attention," he told Law360. "People couldn't take depositions, or they're taking them by video and they're fighting about that. Everything kind of slipped." That's contributed to an ongoing slowdown, though many federal district courts resumed normal operations a while ago. In the first year of the pandemic, the national average for the duration of a criminal case spiked immediately and has continued to climb over subsequent years. Civil cases, meanwhile, saw a decline in duration over the first year of the pandemic, hit prepandemic levels the following year and, in the 12-month period ending in March, lasted longer than they have in more than two decades. Judge Tunheim attributes both spikes to long stretches where courthouses were largely closed to in-person proceedings. For example, in his district of Minnesota, trials were canceled from March until September 2020, at which point there were a few criminal trials. One, concerning a mosque bombing, faced delays, including a mid-trial continuance when a juror got COVID. After that, he said, he canceled jury trials again until May 2021. "The time it takes to resolve a case really had a lot to do with the pandemic," Judge Tunheim said. "Things just really slowed down, and once they started up again, we went to the oldest cases first. So the newer cases were then taking longer to resolve because we were working on the older cases." Defendants in Limbo Judge Saylor wrestled with his decision to limit court hearings in Massachusetts back in 2020. "It's easy to say everything will be postponed," he told Law360 at the time, "but it's hard to know what to do about that person who is in jail awaiting trial." In the three years since, the wait for a Massachusetts criminal case to be resolved has doubled, from a prepandemic average of just over a year to 25.7 months by the end of March. Before the pandemic, the durations of criminal cases had been modestly decreasing. Nationally, there has been a similar reversal in how long it takes for a criminal case to reach a verdict or a plea, according to statistics from the Administrative Office of the U.S. Courts. In the years leading up to the pandemic, about half of the 94 federal district courts had seen a decline in the median length of criminal cases. But now, every district has seen a slowdown in felony cases since the year before the pandemic. Federal felony case slowdowns in Massachusetts were in part the result of pandemic policies. Judges often gave the U.S. Probation Office extra time to file its presentencing reports, and judges were more lenient in granting continuances, according to Robert Farrell, Massachusetts' clerk of court. He said it also took some time to equip jails with videoconferencing equipment so that defendants could attend hearings virtually. But the increase in case durations isn't solely attributable to pandemic slowdowns, according to Judge Saylor. Instead of delays in actual adjudications, the numbers might, at least in part, reflect how slowly courtroom deputies entered judgments after sentencing — a problem that was exacerbated as senior staff retired amid the pandemic and their young replacements learned to do their jobs remotely. Some of the slowdown is also attributable to changes in the composition of the criminal docket nationally, according to a Federal Judicial Center report on the first two years of the pandemic. For example, the overall share of immigration crimes, which are typically adjudicated quickly, fell from 37% of completed cases on the criminal docket in the year preceding the pandemic, to 25% by the end of its second year. But that doesn't fully account for the slowdown; even when case durations were analyzed to account for the nature of the alleged offense, the length of time it took drug, firearm, property and even immigration cases all increased during the pandemic. Resources are also an issue, according to Heather Williams, who leads the Federal Public Defender's Office for the Eastern District of California, where the time it took felony cases to resolve jumped from about 19 months in the year before the pandemic to about 31 in the year ending in March. She said her office's staffing budget, which is determined by the district's weighted caseload, has shrunk from March 2017 to March 2023. Continual cuts to the office's budget forced her to drop about 10 full-time employees from her trial unit, which now has about 55 staff remaining. When the coronavirus forced the district to cancel hearings and made it difficult to meet with clients, that worsened the effects of her staffing cuts, Williams said, leading to a bottleneck. "You have fewer people to handle the cases that are coming in, and it's taking longer to go ahead and resolve them while we try and figure out this pandemic, and so now things start to clog up," she said. "You're limited because it's harder to go ahead and do investigations. It's harder to actually get meetings with the clients. And sometimes those conversations were happening by Zoom, because I didn't allow my staff to go into prison facilities at first because COVID was rampant there." Limits on in-person conversations likely slowed cases, Williams said, because "establishing an attorney-client relationship is vital to getting cases resolved." King said she's also noticed a recent exodus from government jobs in both U.S. attorneys' and public defenders' offices, as lawyers head to BigLaw firms where the pay is far better. "That has created a revolving door of prosecutors, meaning the file never really gets reviewed thoroughly before it's handed off to somebody else and they have to start all over again," she said. "It's creating real instability in the institution." Even private defense attorneys like King have trouble moving their cases forward, she said, because it's hard to get prosecutors on the phone to schedule depositions. Defendants have also delayed their own cases as courts let more people out on pretrial release rather than send them to jails where COVID ran rampant, according to U.S. District Judge Nannette Brown, chief judge of the Eastern District of Louisiana. "When somebody is out on bond, they're less likely to be pushing for their case to move forward quickly," she said. "If they're out and they are compliant with their conditions, continuances were requested from defendants to give them more time to prepare." Delays sometimes worked to defendants' advantage. Judge Saylor said the wait between hearings often gave people out on pretrial release "the chance to go out and prove themselves" by doing things like finding a job, staying sober or maintaining family ties, factors that the judge said influenced his sentencing decisions. "I don't think that the path to justice is moving cases as fast as humanly possible," Judge Saylor said. "I would call this the Goldilocks issue: You don't want to be too fast or too slow."Aftershocks on the Civil Side While criminal cases felt the effect of the pandemic bottleneck right from the start, civil cases seem to have experienced a lag. The median time it took a civil case to resolve had been decreasing slightly before 2020 and continued to decline during the first year of the pandemic, going from 9.3 months in the year before the pandemic to 8.6 months in COVID's first year. The length of a civil case rose to prepandemic levels in the virus' second year, and then shot up 30% the following year when cases took an average of 12 months to resolve, according to AOUSC numbers. Civil cases may have been insulated from the early effects of the pandemic, since most such litigation is decided during motion practice or by settlement, and because some litigants opted for bench trials that were conducted virtually, according to Judge Bredar. "Civil cases, by and large, are resolved without trial, without in-court proceedings. And our law clerks and our judges remained pretty much fully productive and functional right through the pandemic, it's just that they were often working from home. To the extent that a case is going to be resolved on the papers, there was really no letup whatsoever attributable to COVID," he said. "People didn't stop working, they just couldn't attend to the in-court duties. That impacts the criminal caseload much more." So when courts did reopen, they prioritized the criminal docket. This stunted civil trials. U.S. District Judge Audrey Fleissig, who serves in the Eastern District of Missouri and chaired the Judicial Conference's Court Administration and Case Management Committee during the pandemic, said that though her district had worked through its trial backlog by late 2021, COVID roadblocks slowed the pace of civil cases. "Although we were able to conduct hearings and other pretrial proceedings remotely, the lawyers reported that it was very difficult for them to conduct depositions and interviews, to collect medical records, and to conduct other discovery necessary for their civil cases. So the civil cases may have proceeded more slowly," she said. "If the case was not resolved by court order or by settlement, however, the civil jury trial in our district would have been postponed, as we prioritized criminal cases." Even in Minnesota, where courts bucked the national trend, with the wait for a civil case to resolve by court order, settlement or verdict hitting lower levels during pandemic, the time it took for a civil case to go to trial increased from about 29 months at the end of March 2020 to about 40 months as of March 2023. "On the civil side, we got behind on trials. There's no question that they weren't the highest priority once we came out of the pandemic," Judge Tunheim said, though he added the court kept up with hearings and conferences via Zoom. "It was midyear before we opened up in 2021 for trials, and criminal cases were at the top of the docket going forward until we really caught up on the backlog." Another slowdown came from attorneys recovering from the effects of the pandemic, according to Judge Brown. She wondered if continued telework — at the offices of both firms and their clients — might slow the process of gathering discovery and setting depositions. That, combined with the 2021 hurricane season in New Orleans, meant she was more flexible than usual about delaying trial dates. "In 2022, I feel like lawyers were still adjusting. Things were just opening up. We gave continuances because lawyers could not agree on a time for depositions or lawyers were having difficulty getting information from their clients or from opposing counsel," she said. "I was giving lawyers — probably last year and up until a few months ago — a little wiggle room if they could show relatively good cause." Still, she said, her calendar has started to move along. In the spring of 2022, she had trials almost every week for nearly three months, and only one of them was a criminal case. Now judges seem to be scheduling cases on a reasonable prepandemic-era trial timeline, according to Dallas litigator Monica Latin, managing partner at Carrington Coleman Sloman & Blumenthal LLP. But, she added, the effects of the pandemic might still be felt later on. "It will be a while before we know when we pull up to a particular trial date [and] it gets pushed another six months, [if that's] because of the backlog or might that have happened anyway," Latin said. "I've not felt any kind of drag on the litigation process in the Northern District [of Texas]. I have heard judges talk about the ongoing backlog of COVID-era cases, particularly the criminal docket that always gets priority. So it would stand to reason that the civil cases will get pushed further back just because there was a long period of time where very little could happen." The counter-phenomenon of a decrease in new filings likely offset a potentially worse bottleneck and "gave a little breathing room" to tackle the backlog, according to Sandman. Still, he said, "it takes a while for a jolt like that to work its way through the system." "I don't think it will be a long-term problem," he said, "but I don't think we're through it yet.".

Current working situation in the courts Increases in caseloads continues to be the biggest changes that respondents say they have experienced over the past two years. However, all aspects of work are less likely to have increased since last year, with case delays and courts backlogs significantly less likely to have increased. Figure 1: Changes in aspects of work in last 24 months Year 2022 n=201 Case load Complexity of issues you work on Variety of issues you work on Case delays/continuances Amount of resources to address department’s needs, excluding staff Courts backlog 40% 36% 31% 27% 26% 40% 36% 31% 14% 45% 3% 3% 53% 62% 25% 36% 20% 13% 39% 39% 35% *45% 28% *44% 2023 n=223 Level of government State n=162 40% 36% 31% 27% 26% 25% 40% 35% 29% 27% 23% County/Muni n=61 41% 39% 38% 28% 33% 25% 23% Title/Function Judge n=101 45% 29% 24% 29% 26% Court Prof. n=122 37% *43% *38% 25% 25% 23% Increased Decreased Stayed the same Percent “Increased” 26% * Indicates significant difference from comparison While 40% of those surveyed said increasing caseloads continues to be the biggest change they’ve experienced over the past two years, this is down from 45% in 2022. Indeed, all other aspects of work are less likely to have increased since last year as well, with increases in case delays being cited by 27% of respondents, compared to 45% in 2022; and increases in courts backlogs cited by 25% of respondents, compared to 44% in the previous survey. Both of these point to an easing of some of the stifling congestion that hindered the swift dispensing of justice and was greatly increased by the restrictions caused by the pandemic. © Thomson Reuters 2024 State of the Courts Report 2024 7 Looking ahead to the coming 12 months, respondents cited increased caseloads as the most highly anticipated change in the next year, but respondents are significantly more likely to expect an increase in the complexity of issues they face than they were in 2022. And court professionals are more likely than judges to expect increased issue complexity and variety, case delays, and court backlogs, but they are also more likely to anticipate receiving more resources to address their department’s needs. Figure 2: Expected changes in next 12 months Case load Complexity of issues you work on Variety of issues you work on Case delays/continuances Amount of resources to address department’s needs, excluding staff Courts backlog 39% 53% 8% 35% 30% 24% 22% 20% 64% 69% 61% 69% 49% 1% 1% 15% 9% 31% Year 2022 n=201 46% 26% 25% 25% 2023 n=223 39% *35% Level of government State n=162 40% 32% County/Muni n=61 38% 43% Title/Function Court Prof. Judge n=101 37% 29% n=122 41% *40% 30% 24% 21% 19% Increased Decreased Stayed the same 22% 20% 28% 23% 19% 34% 28% 30% 19% 21% Percent “Increase” 22% 17% 17% *37% *30% *26% 15% *24% * Indicates significant difference from comparison © Thomson Reuters 2024 State of the Courts Report 2024 8 Almost two-thirds of respondents (64%) said they experienced staffing shortages in the past year, and 56% said they expect them again in the coming year. Also, state court respondents were more likely than county/municipal court respondents to have experienced staffing shortages in the past year and to expect them in the coming year. Figure 3: Experienced staffing shortages in past 12 months 36% 64% Year 2022 n=201 Yes 2023 n=223 68% No 32% 64% 36% Level of government State n=162 County/Muni n=61 67% 33% 57% 43% * Indicates significant difference from comparison Yes No Figure 4: Anticipate staffing shortages in next 12 months 44% 56% Yes No Year 2022 n=201 Yes No NA NA Level of government 2023 n=223 56% 44% State n=162 County/Muni n=61 *60% 40% 46% *54% * Indicates significant difference from comparison © Thomson Reuters 2024 State of the Courts Report 2024 9 Interestingly, there was very little change in staffing budget situations between 2022 and 2023, with more than two-thirds of respondents (66%) saying they expect their budgets to stay the same over the coming year. County/municipal courts are significantly more likely than state courts to have increased staffing budgets in the past year, and are more likely to expect budget growth in the coming year. Figure 5: Experienced staffing budget change in past 12 months 5% 53% Increased Decreased Stayed the same Year 2022 n=201 42% Increased Stayed the same 41% 50% 2023 n=223 42% 53% Decreased 8% 5% Level of government State n=162 38% 55% County/Muni n=61 *51% 48% *7% 2% * Indicates significant difference from comparison Figure 6: Anticipate staffing budget change in next 12 months 4% 66% 30% Increased Decreased Stayed the same Year 2022 Increase Stay the same NA NA 2023 n=223 30% 66% Decrease NA 4% Level of government State n=162 27% 67% County/Muni n=61 38% 62% *6% 0% * Indicates significant difference from comparison © Thomson Reuters 2024 State of the Courts Report 2024 10 Hearings delays Hearings are also becoming more manageable, according to survey respondents, with one-half of respondents participating in 10 hearings or fewer per week. The average number of hearings per week has dropped in the past year to 35, compared to 43 in 2022. Not surprising, judges participate in significantly more hearings per week, 55, than do court professionals, 19, on average. Figure 7: Hearings participating in per week Year 2022 n=201 0 1-10 11-20 21-50 51-100 More than 100 20% 12% 30% 23% 6% 9% 18% 24% 14% 21% *12% 10% Level of government 2023 n=223 20% 30% 12% 23% 6% 9% State n=162 22% 26% 12% 24% 7% County/Muni n=61 16% *39% 11% 21% 3% 9% 8% Title/Function Court Prof. Judge n=101 n=122 3% 22% 15% *36% *10% *34% *36% 10% 13% 3% *15% 3% * Indicates significant difference from comparison © Thomson Reuters 2024 State of the Courts Report 2024 11 As to the important issue of hearing delays, respondents said that an average of 19% of hearings per week are delayed by more than 15 minutes, which is a slight increase from 2022 when respondents said an average 17% per week were delayed by more than 15 minutes. Figure 8: Hearings delayed by more than 15 minutes Year 2022 n=164 0% 1%-10% 11%-20% 21%-30% 31%-40% 41%-50% More than 50% 24% 10% 8% 2% 12% 37% 7% 21% 45% 12% 5% 2% 8% 2023 n=178 24% 37% 10% 8% 2% 12% 7% 7% Level of government State n=127 22% 38% 9% 9% 2% 13% County/Muni n=51 27% 35% 12% 8% 2% 12% 8% 4% Title/Function Court Prof. Judge n=98 n=80 24% 36% 10% 8% 1% 11% 23% 39% 10% 9% 3% 14% 9% 4% © Thomson Reuters 2024 State of the Courts Report 2024 12 As to the primary causes of hearing delays, failures to appear — both in-person and virtually — were cited by respondents as the main cause, by a very wide margin. In-person failures to appear (with 63% of respondents citing that as a primary cause of hearing delays) were much more common than virtual failures to appear, cited by 39%. Fortunately, both types of failure to appear have declined since the previous survey, and the only cause for delays that increased significantly was case backlog, with 7% of respondents citing that, up from 2% in 2022. Further, state courts are more likely than county/municipal courts to cite legal precedent issues as cause for hearing delays

Climate change accelerates—trying to respond to its impacts fails because we won’t be able to keep up—mitigation is key Mazo, ‘10 [2010, Jeffrey Mazo, PhD in Paleoclimatology from UCLA, Managing Editor, Survival and Research Fellow for Environmental Security and Science Policy at the International Institute for Strategic Studies in London, 3-2010, “Climate Conflict: How global warming threatens security and what to do about it,” pg. 29] This latter aspect, the rate of change, is a critical factor in terms of adapting to climate change. Although some states and societies will be better able to adapt to change than others, regardless of how resilient a given society is there will always be some point at which its efforts would be overwhelmed by the pace of change. Changes in climate - long-term wind and rainfall patterns, daily and seasonal temperature variations, and so on - will produce physical effects such as droughts, floods and increasing severity of typhoons and hurricanes, and ecological effects such as changes in the geographical range of species (including disease-causing organisms, domesticated crops and crop pests). These physical changes in turn may lead to effects such as disruption of water resources, declining crop yields and food stocks, wildfires, severe disease outbreaks, and an increase in numbers of refugees and internally displaced persons.4 Adaptation fails – warming is just too extreme Stabinsky 12 Professor at College of the Atlantic USA, compiled for WWF International Global Climate and Energy Initiative (Doreen, “Tackling the Limits to Adaptation: An International Framework to Address ‘Loss and Damage’ From Climate Change Impacts”, November 2012; < http://www.careclimatechange.org/files/Doha_COP_18/tackling_the_limits_lr.pdf>)//Beddow When mitigation of greenhouse gas emissions by responsible countries is insufficient to “prevent dangerous anthropogenic interference with the climate system”, 22 countries are forced to undertake disaster risk reduction and adaptation measures to prevent permanent loss and damage. There are, however, limits to how far disaster risk reduction and adaptation can reduce loss and damage. In the case of disaster risk reduction, some types of disasters will increase in frequency and severity (see Box 1 on the latest intergovernmental panel on climate Change (IPCC) findings regarding extreme events), overwhelming both risk reduction measures and generally the ability of most developing countries to cope with the impacts of those disasters. Moreover, loss and damage from extreme events extend beyond immediate losses of property and life. In St. Lucia, damage from hurricane Tomas was estimated at about 34% of total gdp. 23 Such devastating impact has a serious effect on long-term prospects for sustainable development. 24 Adaptation to 2°C of warming will be more difficult than for 1.5° c . Adapting to 4° c or 6° c of warming may be impossible. Moreover, given the changing nature of the global climate, adaptation will always be insufficient, requiring a continuous learning process towards a constantly moving boundary. The greater the warming, the more loss and damage that can be anticipated from the adverse effects of climate change. Similarly, the less support for adaptation in terms of finance, technology and capacity, the more loss and damage will result. A country’s level of development will also affect how its population experiences loss and damage, as poverty and related socio-economic and infrastructure weaknesses exacerbate the impacts and adverse effects of climate change. But a country’s lack of development or status of development is not an excuse for inaction by the global community to help them respond to severe climate loss and damage. There are very real limits to how far human systems and ecosystems can adapt to most of the slow-onset processes identified in UNFCCC decision 1/CP.16. This is true particularly for rises in temperature and sea levels, ocean acidification, loss of biodiversity, salinization and desertification. Because such processes progress and increase their impact over time – and often at large scale, adaptation gradually becomes less possible. As temperatures and sea levels rise, territory will become uninhabitable and unproductive. soil moisture levels will decrease to the point that cultivation of crops is no longer viable in entire regions. Groundwater sources in coastal areas will become too saline to be used as drinking water. Adaptation will become impossible on low-lying islands, in settlements close to sea level, and in the most arid regions. This will lead to permanent loss of lands, livelihoods and cultural resources. 26 Permanent loss and damage from slow-onset disasters will go far beyond economic loss – livelihoods will be lost, territory will have to be abandoned, and migrants from non-productive lands will lose their homes, culture and community.

Failure to act on the climate crisis is the most severe threat over the next decade, according to the World Economic Forum’s Global Risks Report 2023. Climate activists are increasingly using legal action to enforce climate action, a new report shows. Here are some of the notable breakthroughs climate litigation has already achieved. Lawyers may seem unlikely allies in the fight against the climate emergency but, according to a new survey, they are playing an increasingly important role in holding corporations and governments accountable for failures to tackle the climate crisis. Research by the Columbia Law School, commissioned by the United Nations Environment Programme (UNEP), reveals that the number of climate-related court cases has more than doubled since 2017 and is steadily rising around the world. Graphs illustrating the growth of climate change litigation. The number of climate-related court cases has more than doubled since 2017. Image: UNEP Their report confirms a trend highlighted in the World Economic Forum’s Global Risks Report 2023, which noted that individuals and environmental groups were turning to the law as it became clear that the pace of transition to net-zero emissions was too slow. “Climate litigation is increasing and concerns about emissions under-reporting and greenwashing have triggered calls for new regulatory oversight for the transition to net zero,” the Forum report said. Failure to mitigate climate change is the single biggest risk to the world over the next decade, according to the Global Risks Report, with failure to adapt to climate change ranked as the second most severe long-term threat. The Intergovernmental Panel on Climate Change (IPCC) says global temperatures are already 1C higher than pre-industrial levels and warns that greenhouse gas emissions must be cut to zero if the rise in global temperatures is to be contained at 1.5C. The UNEP report catalogues a number of high-profile court cases which have succeeded in enforcing climate action. In 2017, when climate case numbers were last counted, 884 legal actions had been brought. Today the total stands at 2,180. A majority of climate cases to date – 1,522 – have been brought in the United States, followed by Australia (127), the UK (79) and the EU (62). The report notes that the number of legal actions in developing countries is growing, now accounting for 17% of the total. View of people at a climate change protest. Can legal action help limit global heating to 1.5C? Image: Unsplash/Mika Baumeister “Climate policies are far behind what is needed to keep global temperatures below the 1.5C threshold, with extreme weather events and searing heat already baking our planet,” said Inger Andersen, Executive Director of UNEP. “People are increasingly turning to courts to combat the climate crisis, holding governments and the private sector accountable and making litigation a key mechanism for securing climate action and promoting climate justice.” Climate litigation is also giving a voice to vulnerable groups who are being hard hit by climate change. The report says that, globally, 34 cases have been brought by children and young people, including two by girls aged seven and nine in Pakistan and India. Here are five of the climate breakthroughs achieved by legal action so far. 1. Torres Strait Islanders vs Australia In September 2022, indigenous people living on islands in the Torres Strait between northern Queensland and Papua New Guinea won a landmark ruling that their human rights were being violated by the failure of the Australian government to take effective climate action. The ruling by the UN Human Rights Committee established the principle that a country could be in breach of international human rights law over climate inaction by ruling that Australia’s poor climate record was a violation of the islanders’ right to family life and culture. 2. Paris agreement is a human rights treaty In July 2022, Brazil’s Supreme Court ruled that the Paris climate agreement is legally a human rights treaty which, it said, meant that it automatically overruled any domestic laws which conflicted with the country’s climate obligations. The court ordered the Brazilian government to reopen its national climate mitigation fund which was established under the Paris Agreement, ruling that it had a constitutional duty to honour its obligations. 3. Climate inaction is a breach of human rights Upholding an earlier court ruling that greenhouse emissions must be cut by 25% by 2020, the Netherlands Supreme Court ruled that failure to curb emissions was a breach of the European Convention on Human Rights. The December 2019 ruling stated that, although it was up to politicians to decide how to make the emission cuts, failure to do so would be a breach of Articles 2 and 8 of the Convention which affirm the right to life and respect for private and family life. DISCOVER How is the World Economic Forum fighting the climate crisis? 4. Companies are bound by the Paris accord The principle that corporations and not just governments must abide by the emissions reductions agreed in the Paris climate treaty was established by a 2021 court ruling in the Netherlands brought by environmentalists against energy group Royal Dutch Shell. The court ordered Shell to cut its CO2 emissions by 45% by 2030 bringing them in line with Paris climate targets. The judge was reported as saying there was "worldwide agreement" that a 45% reduction was needed, adding: "This applies to the entire world, so also to Shell”. 5. Courts overturn state climate plans To date, three European governments have been defeated in the courts over their climate plans. In March 2021, Germany’s highest court struck down a climate law requiring 55% emissions by 2030 cuts, ruling it did not do enough to protect citizens’ rights to life and health. In the same year, the French government was ordered to take “immediate and concrete action” to comply with its climate commitments. And in 2022, the UK’s climate strategy was ruled unlawful for failing to spell out how emissions cuts would be made.

By Lynn Kirkpatrick, CEO of Ensysce Biosciences – a clinical-stage biopharmaceutical company developing safer prescription drugs to treat severe pain. Lynn was a judge on the Burjeel Holdings Oxford Saïd Climate Change Challenge and shared this blog with us. The clock is ticking, and the stakes couldn’t be higher. Climate change is a daunting global challenge that knows no boundaries and respects no borders. It demands innovative solutions that transcend the conventional and the mundane. One step to a solution is to harness biotechnology to aid in combating climate change. The potential of biotechnology, where many of today’s new technologies and products first get off the ground, to address this colossal issue is nothing short of extraordinary, touching upon five critical aspects – those same five areas which formed the basis for the : air pollution extreme weather events diseases carried by insects food security water scarcity Air pollution Air pollution poses a dire threat to the health of our planet. The consequences, such as smog-filled skies and respiratory illnesses, are glaringly evident. Biotechnology steps in with a solution that's as ingenious as it is effective. Engineered microorganisms can be deployed to scrub the atmosphere of harmful pollutants like nitrogen oxides and volatile organic compounds, effectively reducing air pollution. Moreover, the production of biofuels from algae, fungi, and bacteria can substantially diminish emissions of greenhouse gases, curbing our carbon footprint. Extreme weather events The intensification of extreme weather events is a clear signal of climate change. Biotechnology has a role to play here as well. Through genetic engineering, we can bolster the resilience of crops to withstand harsh climatic conditions. This leads to increased agricultural productivity, which is crucial for a growing global population in the face of changing weather patterns. These genetically modified crops, coupled with precision agriculture techniques, empower us to adapt and mitigate the impact of extreme weather events on food production. Diseases carried by insects Climate change contributes to the spread of diseases carried by insects, such as malaria and dengue fever. Biotechnology offers a beacon of hope with the genetic modification of insects themselves. Techniques like can reduce the population of disease-carrying insects, acting as a preventive measure against the proliferation of these illnesses. Moreover, advancements in biotechnology enable the development of vaccines and treatments for the diseases themselves that are both more effective and affordable, such as Food security With a rising global population and an ever-shrinking area of arable land, food security is a pressing concern. Biotechnology answers this challenge through the development of drought-resistant and pest-resistant crops. By enhancing crop yields, biotechnology can help meet the food demands of the future. Additionally, alternative food sources like lab-grown meat and plant-based proteins are revolutionising the food industry, offering sustainable options that require fewer resources and produce lower emissions. Water scarcity Water scarcity looms large on the horizon. The biotechnology sector contributes through innovative methods of wastewater treatment and desalination, rendering water resources more accessible and reducing the environmental impact of water-intensive processes. Moreover, genetically modified plants can aid in phytoremediation, absorbing pollutants from the soil and groundwater, leading to cleaner water sources. In the grand tapestry of the battle against climate change, biotechnology emerges as a versatile thread, interwoven with innovative solutions to some of the most pressing issues of our time. As we stand on the precipice of a climate catastrophe, embracing these biotechnological advancements is not just a choice; it's an imperative.

Robert F. Kennedy’s speech, which includes his reference to the oft-quoted “interesting times” curse, applies throughout history in many contexts and, indeed, with both negative and positive connotation. While he focused on the struggles for freedom and social justice, the requisite ascendancy of the individual over the state, and the institution and integration of those ideals for the greater good, he also promoted the goals of greater global unity, cooperation and communication, which were, and could be, achieved by advances in technology. And, as noted in the excerpt, he championed “the creative energy of men.” Intellectual Property in “Interesting Times” It is beyond question that starting with the last decade of the twentieth century and throughout the first two decades of the twenty-first century, when it comes to matters relating to intellectual property, we have been living in “interesting times.” Some may interpret these interesting times as defined by the curse and others may view it by the ordinary meaning of “interesting.” In either case, those of us that toil in the fields of patents, copyrights, trademarks, trade secrets, and privacy rights have experienced an unprecedented sea change in the way those rights are procured, protected and enforced. Likewise, and perhaps more importantly, even those of us that do not practice in these areas of law, as well as the general public, have been, and continue to be, impacted by the consequences of these changes (both positive and negative). The Changes In Intellectual Property Law Examples of some of the changes in intellectual property law are: the sweeping 2011 legislative changes to the patent laws under the America Invents Act (AIA), which impact is only beginning to be fully appreciated; the various proposals for patent law reform, on the heels of the AIA, beginning with the 113th and 114th Congress; the copyright laws Digital Millennium Copyright Act (DMCA) and numerous 114th Congressional proposed copyright law changes; the recently enacted federal trade secret law (Defend Trade Secrets Act of 2016 (DTSA))2; the impact of the internet, domain names and globalization on Trademark law; the intellectual property law harmonization requirements included in various global/regional trade agreements; and the proliferation of devices (both invasive and non-invasive) that defy any rational basis for believing we can still adhere to the republic’s libertarian understanding of the right to privacy. Without engaging in “chicken and egg” analysis, it is sufficient to observe that technological advancement, societal needs, globalization, existential threats, economic realities, and political imperatives (or what James Madison referred to in the Federalist Papers No. 10 as factious governance), have combined to create the “interesting times” for the United States [IP] intellectual property laws. What was said by Bobby Kennedy in 1966 remains true today. We live in dangerous and uncertain times. Many of the existential threats remain the same (nuclear war and proliferation, genocidal maniacs and natural disease) and some are new ([hu]manmade disease, greater awareness of environmental changes and possibly human interrelationship factors, and the unintended consequences of genetic manipulation and robotic technologies). The danger and uncertainty that pervades changes in intellectual property laws, though not an existential threat of the same manner and kind, correlates with the threat and remains “more open to the creative energy of man than any other time in history.” Apropos the creative energy of man, there is a non-coincidental congruence and convergence of activity across and among the three branches of government, occurring almost simultaneously with the congruence and convergence of the rapid developments of technological innovation across various scientific disciplines and the information age, reflected in the transformation of the [IP] intellectual property laws in the United States. Patents The passage of the AIA was a culmination of efforts spanning several years of Congressional efforts; and the product of a push by the companies at the forefront of the twenty-first century new technology business titans. The legislation brought about monumental changes in the patent law in the way that patents are procured (first inventor to file instead of first to invent) and how they are enforced (quasi-judicial challenges to patent validity through inter-party reviews at the Patent Trial and Appeals Board (PTAB)). The 113th and 114th Congress grappled with newly proposed patent law reforms that, if enacted, may present additional tectonic shifts in the patent law. Major provisions of the proposals include: fee-shifting measures (requiring loser pays legal fees - counter to the American rule); strict detailed pleadings requirements, promulgated without the traditional Rules Enabling Act procedure, that exceed those of the Twombly/Iqbal standard applied to all other civil matters in federal courts, and the different standards applicable to patent claim interpretation in PTAB proceedings and district court litigation concerning patent validity. The Executive and administrative branch has also been active in the patent law arena. President Obama was a strong supporter of the AIA3 and in his 2014 State Of The Union Address, essentially stated that, with respect to the proposed patent law reforms aimed at patent troll issues, we must innovate rather than litigate.4 Additionally, the USPTO has embarked upon an energetic overhaul of its operations in terms of patent quality and PTO performance in granting patents, and the PTAB has expanded to almost 250 Administrative Law Judges in concert with the AIA post-grant proceedings’ strict timetable requirements. The Supreme Court, not to be outdone by the Articles I and II branches of the U.S. government, has raised the profile of patent cases to historical heights. From 1996 to the 2014-15 term there has been a steady increase in the number of patent cases decided by the SCOTUS5. The 2014-15 term occupied almost ten percent of the Court’s docket. Prior to the last two decades, the Supreme Court would rarely include more than one or two patent cases in a docket that was much larger than those we have become accustomed to from the Roberts’ Court6. While the SCOTUS activity in patent cases is viewed by some as a counter-balance to the perceived Federal Circuit’s pro-patent and bright line decisions, it can just as assuredly be viewed as decisions rendered by a Court of final resort which does not function in a vacuum devoid of the social, economic and political winds of the times. In recognition of the effect new technologies have on the patent law, the politicization of intellectual property law matters, especially patent law (through factious governing principles of the political branches of the government), and the maturation of the Federal Circuit patent law jurisprudence, the SCOTUS has rendered opinions in cases that impact, and perhaps are/were intended to mitigate the concerns regarding, some of the vexing issues confronting the patent community today (e.g., non-practicing entities or in the politicized parlance “patent trolls,” the intersection of patent and antitrust laws in Hatch-Waxman so called “pay-for-delay” settlements between Branded and Generic pharma companies, and the fundamental tenets that comprise the very heart of what is patent eligible subject matter). Copyrights The advent and ubiquity of the internet, social media and digital technologies (MP3s, Napster, Facebook, YouTube, and Twitter) represents the impetus for changes in the Copyright laws. The DMCA addressed the issues presented by these advances or changes in the differing media and forms of artistic impressions. The proliferation of digital photos, graphic designs and publishing alternatives, as well as adherence to globalization harmonization have given rise to changes in the statutory law and jurisprudence in this area of intellectual property law. Additionally, there is an overlap of patent rights and copyrights for software driven by the ebb and flow of the strength of each respective intellectual property protection. Notably, the Patent and Copyright Clause7, in addition to Author’s writings, has been viewed as discretely applying to two different types of creativity or innovation. When drafted the “sciences” referred not only to fields of modern scienctific inquiry but rather to all knowledge. And the “useful arts” does not refer to artistic endeavors, but rather to the work of artisans or people skilled in a manufacturing craft. Rather than result in ambiguity or confusion, perhaps the Framers were either quite prescient or, just coincidentally, these aspects of the Patent and Copyright Clause have converged. For example, none other than the famous Crooner, Bing Crosby, benefited from both protections. Well-known as a prolific and popular recording artist he also benefited from his investments in the, then innovative, recording technologies. Similarly, the Beatles, Beach Boys, as well as many other rock and roll artists, experimental efforts in music performance, recording and production, helped to transform the music industry in both copyrightable artistic expression and patentable inventions. Similarly, film, literary and digital arts reap benefits at the crossroads of both copyright and patent protections. Trademarks Trademark laws have been impacted by numerous changes in the business landscape. They include the internet, Domain names, international rights in a global economy, different venues and avenues for branding, marketing and merchandising, global knock-offs from nations that have a less than stellar respect for intellectual property rights, and international trade agreements. More recently, politicization (or perhaps political correctness) has creeped into the trademark law arena pitting branding rights and protections against first amendment rights. Trade Secrets As with Copyright and Trademark law, trade secrets law includes some of the same issues related to trade agreements. TRIPS required members to have trade secret protection in place. Initially, the United States compliance with this requirement has relied upon the trade secret law of the individual states. That compliance may be supplanted by the recently enacted DTSA. Similarly, the Trans Pacific Partnership (TPP) trade agreement contains intellectual property rights provisions that will trigger required changes to United States statutory Intellectual Property Laws. The proposed trade secret legislation also gives rise to several concerns. For instance, there is an absence of a specific definition for trade secret, as well as potential issues of federalism, conflict with state law precedent (despite no preemption), remedies, and the impact on employer/employee relations. There is also a real concern that the strengthening of trade secret protection in conjunction with the perceived weakening of patent protection (e.g., high rate of invalidating patents in post-grant proceedings before the PTAB and strict limitations on what is patent eligible subject matter) may very-well have the unintended consequence of contravening the purpose behind the Patent and Copyright Clause: “to promote the progress of the sciences and the useful arts.” Moreover, the incentive to innovate may very well be usurped by the advantage of withholding patent law disclosure of highly beneficial scientific advancements that directly affect the human condition, alter life expectancies and the evolution of the human species (rather than by mere “natural selection”), and what is the very essence of a human being (for better or worse). Thus, crippling innovation and the progress of the sciences and useful arts. Privacy Rights It is increasingly more difficult to function “off the grid.” The invasive and non-invasive attributes of the internet, the reliance upon the multitude of devices, social media, and information age technologies, and access to big data, all contribute to the decrease in and dilution of the right to privacy. Wittingly or otherwise, the strong libertarian roots of the republic have been replaced by dependence upon these modes of an information-age life. Commentary on the benefits and deficits of this reality are beyond the subject and purpose of this writing. Suffice to acknowledge that the right to privacy has been significantly reduced. The laws that protect these rights are in a constant struggle to maintain those rights while yielding to the demands of the lifestyle and security concerns. Laws that relate to cybersecurity in the global and domestic space create interplay with privacy rights. Legislation, trade agreements and jurisprudence all impact this area of intellectual property. Cross-border theft of trade secrets, competitor espionage, and loss of control over personal data are all implicated in the intellectual property law arena. America’s Need For Strong Intellectual Property Protection The need for strong protection of intellectual property rights is greater now than it was at the dawn of our republic. Our Forefathers and the Framers of the U.S. Constitution recognized the need to secure those rights in Article 1, Section 8, Clause 8. James Madison provides insight for its significance in the Federalist Papers No. 43 (the only reference to the clause). It is contained in the first Article section dedicated to the enumerated powers of Congress. The clause recognizes the need for: uniformity of the protection of IP rights, securing those rights for the individual rather than the state; and, incentivizing innovation and creative aspirations. Underlying this particular enumerated power of Congress is the same struggle that the Framers grappled with throughout the document for the new republic: how to promote a unified republic while protecting individual liberty. The fear of tyranny and protection of the “natural law” individual liberty is a driving theme for the Constitution and throughout the Federalist Papers. For example, in Federalist No. 10, James Madison articulated the important recognition of the “faction” impact on a democracy and a republic. In Federalist No. 51, Madison emphasized the importance of the separation of powers among the three branches of the republic. And in Federalist No. 78, Alexander Hamilton, provided his most significant essay, which described the judiciary as the weakest branch of government and sought the protection of its independence providing the underpinnings for judicial review as recognized thereafter in Marbury v. Madison. All of these related themes are relevant to the Patent and Copyright Clause and at the center of the intellectual property protections then and now. The Federalist Papers No. 10 recognition that a faction may influence the law has been playing itself out in the halls of congress in the period of time leading up to the AIA and in connection with the current patent law reform debate. The large tech companies of the past, new tech, new patent-based financial business model entities, and pharma factions have been the drivers, proponents and opponents of certain of these efforts. To be sure, some change is inevitable, and both beneficial and necessary in an environment of rapidly changing technology where the law needs to evolve or conform to new realities. However, changes not premised upon the founding principles of the Constitution and the Patent and Copyright Clause (i.e., uniformity, secured rights for the individual, incentivizing innovation and protecting individual liberty) run afoul of the intended purpose of the constitutional guarantee. Although the Sovereign does not benefit directly from the fruits of the innovator, enacting laws that empower the King, and enables the King to remain so, has the same effect as deprivation and diminishment of the individual’s rights and effectively confiscates them from him/her. Specifically, with respect to intellectual property rights, effecting change to the laws that do not adhere to these underlying principles, in favor of the faction that lobbies the most and the best in the quid pro quo of political gain to the governing body threatens to undermine the individual’s intellectual property rights and hinder the greatest economic driver and source of prosperity in the country. It is also important to recognize that the social, political and economic impact of strong protections for intellectual property cannot be overstated. In the social context, the incentive for disclosure and innovation is critical. Solutions for sustainability and climate change (whether natural, man-made or mutually/marginally intertwined) rely upon this premise. Likewise, as we are on the precipice of the ultimate convergence in technologies from the hi-tech digital world and life sciences space, capturing the ability to cure many diseases and fatal illnesses and providing the true promise of extended longevity in good health and well-being, that is meaningful, productive, and purposeful; this incentive must be preserved. In similar fashion, advancements in technologies related to the global economy and communications will enhance the possibilities for solutions to political and cultural conflicts that arise around the globe. Likewise, the United States economy has always benefited when it is at the forefront of innovation and achieves prosperity from its leadership role in technological advancements. Conclusion As was the case in 1966, how we move forward today, to solve the many problems facing our country and the broader global community in these “interesting times,” both within and without the laws affecting intellectual property rights, depends upon the “creative energy of man” which must prevail. An achievable goal, dependent on the strong, stable and sound protection of intellectual property rights.

Needless to say, threats to American interests still exist. They include international terrorism; economic competition that could produce dangerous regional trade blocs and trade wars; environmental degradation reaching crisis proportions; the proliferation of weapons, both conventional and nuclear; and ethnic and national conflicts that could lead to war. These threats and others may not be easy to encapsulate in the public’s mind, but any one of them could affect, fundamentally, our way of life—what Tom Friedman would call “our flat world.”1 And together they constitute ample reason for an engaged America in the international arena. The answer to today’s threats is not to win a metaphorical war against a single adversary. The answer lies in creating an overall environment in which international cooperation is emphasized, and in which conflict can be managed and terrorism effectively confronted militarily, economically, and politically. In this context, foreign assistance is not only a charitable endeavor, but also an exercise in enlightened self-interest and the promotion of democracy—not some idealistic crusade, but rather quintessentially an exercise in realpolitik. Nothing better serves the interests of this country— economic, political, or ideological—than the promotion of democratic practices and institutions. A more democratic world is not simply a more orderly and humane place: It is a more peaceful and prosperous place. The notion that there should be a dichotomy between our moral preferences and our strategic goals is a false one. Our ultimate foreign policy goal is a world that is secure, stable, humane, and safe, where the risk of war is minimal. Yet, the undeniable reality is that the geostrategic hotspots most likely to erupt into violence are found, for the most part, in areas of the world that are nondemocratic, or where governments are antidemocratic. Even from the traditional foreign assistance perspective, the establishment of democratic institutions has been found to assure sustainable development. Deforestation, rural dislocation, environmental degradation, and agricultural policies that lead to famine all trace to political systems in which the victims have no political voice; in which government institutions feel no obligation to answer to the people; and in which special interests feel free to exploit the resources, land, and people without fear of oversight or the need to account. Terrorism and political extremism pose an immediate security threat that must be confronted directly and forcefully. Concurrently, there must be a new urgency in the promotion of the rule of law, pluralism, and the respect for human rights. Democracy and human rights are not only ideals to be pursued by all nations; they are also pragmatic tools that are powerful weapons against extremism.

Faced with rising autocracy at the state level, policy-makers may turn to avariety of tools in an effort to defend liberal democracy. This article assessesthe capacity, and the limitations, of one particular set of tools – judicial tools –that the EU may use to defend democracy at the national level. We assessexisting judicial mechanisms that can be used to defend democracy andthe rule of law in EU member states, as well as proposals for the introduction of new tools designed to strengthen the EU’s capacity in this respect. We find that more can be done to maximize the effectiveness of existing judicial mech-anisms, i.e., infringement proceedings and litigation in national courts. At thes ame time, we warn of general risks associated with relying excessively on the judiciary to defend democracy, and discuss the specific risks posed by thenovel judicial instruments that have been proposed recently as means to strengthen the EU’s ability to combat democratic backsliding. We emphasize,first, that relying too much on courts to defend democracy risks unduly poli-ticizing the EU judiciary, and, second, that this approach may encourage pol-itical leaders to shirk their responsibility to stand up against democratic backsliding. Ultimately, judicial safeguards alone are unlikely to succeed against a determined autocratic member state government. If European leaders want to defend democracy in a member state where it is underthreat, they will have to intervene politically as well. 1The remainder of this article is divided into three sections. The next section explores traditional judicial tools for upholding EU norms and discusses waysto overcome their limitations in confronting challenges to the rule of law anddemocracy. We then review innovative proposals made in recent years to strengthen the EU’s judicial tools for tackling democratic backsliding, high-lighting their potential unintended consequences. The final sectionconcludes.Existing legal safeguards: making the most of a limited toolkitIn ‘normal’ times, enforcement of EU norms draws on two well-established judicial mechanisms: centralized monitoring and enforcement by the Euro-pean Commission, which can refer infringement cases to the EuropeanCourt of Justice (ECJ), and decentralized litigation by private parties beforenational courts, potentially involving preliminary references from nationalcourts to the ECJ. Scholars have noted a number of reasons why these tra-ditional judicial instruments seem ill-suited to tackle member state violationsof fundamental EU values such as democracy and rule of law (Müller 2015:147–9). For instance, the politicized nature of the Commission may limit itsuse of the infringement process, restricted access to justice at the nationallevel (particularly during periods of democratic backsliding) may limit decen-tralized enforcement by private parties, the fact that many of the Treaty pro-visions on fundamental values do not meet the legal criteria for ‘direct effect’322 M. BLAUBERGER AND R. D. KELEMENmeans they cannot be directly invoked by private parties before nationalcourts, and, perhaps most importantly, the incremental, yet cumulatively sys-temic process of democratic backsliding may prove elusive to existingmethods of case-by-case enforcement. Yet, while it is important to recognizethe limitations of these approaches, the literatures on compliance and judicia-lization also remind us that the strategic use of these techniques can some-times prove effective in promoting major policy changes (Stone Sweet2010). Therefore, rather than simply giving up on these traditional judicialtools, we should consider how their effectiveness in defending democraticvalues can be maximized.Infringement proceedingsFrom the dawn of the EU legal order, the infringement procedure – whichempowers the European Commission to bring legal proceedings against amember state government for infringement of EU Treaty requirements or sec-ondary legislation – has been a pillar of the enforcement architecture. Overthe years, the Commission has brought thousands of successful infringementactions, pressing states to come into compliance with EU legal norms evenwhere doing so proved very costly. The infringement procedure was strength-ened in the Maastricht Treaty, when the ECJ was empowered (at the requestof the Commission) to impose penalty payments on member state govern-ments for failure to comply with ECJ rulings in infringement cases. Yet,despite the strengths of this procedure, a number of observers have also high-lighted general weaknesses and its particular limitations as a tool to enforcefundamental rights and other core EU values enshrined in Article 2 of theLisbon Treaty.A general finding of EU compliance research is that the Commission prose-cutes infringements selectively (Hartlapp and Falkner 2009: 292). The Commis-sion enjoys great discretion as to whether to initiate or to settle infringementproceedings, and critics note that the Commission often postpones politicallysensitive conflicts and launches cases only when it seems most likely they willprevail (Conant 2002: 75). This practice of selective enforcement may helpexplain why the Commission has not pursued more infringements againstthe Hungarian government in recent years. And yet, recognizing that strategicconsiderations come into play in the infringement procedure also suggeststhat the Commission might still increase the volume and effectiveness of itsenforcement actions.The past five years have seen the European Commission and other EU insti-tutions preoccupied with managing the eurozone crisis. Strikingly, thenumber of infringement cases referred to the ECJ decreased by over 72 percent since the outbreak of the financial crisis in 2008. 2 This decline is likelyowing to both the fact that the Commission’s limited resources were beingJOURNAL OF EUROPEAN PUBLIC POLICY 323concentrated on addressing the eurozone crisis and the fact that the Commis-sion was wary of offending member state governments whose co-operationthey needed to address the crisis.While the decrease in infringement proceedings during the eurozone crisisprovides worrying evidence about the Commission’s ability to safeguard therule of law during times of economic crisis, it simultaneously provides groundsto believe that as the eurozone stabilizes, the Commission may return to usingthe infringement procedure more aggressively. Moreover, the line-up of theJuncker Commission that took office in late 2014 has increased the likelihoodof credible enforcement action in the area of EU fundamental values. The firstVice-President, Frans Timmermans, is entrusted with co-ordinating the Com-mission’s activities in the areas of rule of law and fundamental rights. In hisprevious position as Dutch Minister of Foreign Affairs, Timmermans hadbeen one of the signatories of a letter to President Barroso, calling for agreater role of the Commission in safeguarding EU fundamental values atthe member state level. 3 In a possible recent sign of the rejuvenation of theinfringement procedure, the Commission countered member state govern-ments’ attempts to shift the blame to ‘the EU’ for the refugee crisis by initiat-ing 40 strategically timed infringement proceedings against member statesfor their violations of EU asylum and immigration policies. 4 Moving forward,one measure to strengthen the Commission’s use of infringements, whichcould be easily implemented, would be to increase personnel devoted tomonitoring and prosecuting infringements against EU fundamental values(Kochenov and Pech 2015: 11). Moreover, even without labelling them ‘sys-temic infringement actions’ against fundamental values in Article 2 TEU (seethe discussion of this proposal below, Scheppele [2014]), the Commissioncan do more to co-ordinate its enforcement activities 5 across different direc-torates and bundle them in order to emphasize the systemic character of ruleof law issues.

This time last year, the consensus of the world’s leading economists and economic institutions was virtually for a deep recession, continuing into 2024. By March, economist Nouriel Roubini was warning of “the mother of all debt crises”. “We’re moving from the great moderation to the great stagflationary debt crisis and instability,” he said. In April, the International Monetary Fund judged that “risks are firmly on the downside”. What has happened since, that forecasters are now predicting a soft landing and perhaps no recession at all? How did the profession so comprehensively misjudge the prospects for the global economy? First, it remains possible the gloom a year ago was well justified, and a recession still hangs over us. Fears have abated but not gone away. True, the alarming increase in inflation post-pandemic seems to now be under control (at about 3 per cent in the United States, from over 9 per cent in 2022). As a result, anxiety about soaring interest rates, and in particular crippling mortgage costs, has eased. Second, whether a recession looms depends on where you live and how you define it. For many in Asia, where inflation did not become a systemic problem, the recessionary panic has very much been a US or European problem. But for those whipsawed by volatile commodity prices and a crippling surge in debt repayment costs, recession has been a cruel reality for longer than the past year. China’s property crisis has had a recessionary impact but this had little connection with the recession feared by US-based economists. Hong Kong is arguably living through a severe downturn that has little to do with inflation or high interest rates, and more to do with the catastrophic impact of the pandemic on the city’s highly specialised hub and headquarter roles. The definition of a recession is also significant. It is routinely and oversimplistically seen as any combination of negative forces that results in a two-quarter contraction of gross domestic product. For many analysts in the US, this definition involves short-term threats such as rising inflation, job losses, growing debt service costs and mortgages, a credit squeeze and poor property and stock market performances. By these criteria, the recessionary threat has been almost triumphantly well-managed. Inflation is sharply down from 2022 peaks, interest rates are high but stable, job creation has remained boisterous, and the stock market has had a superb year – up by over 26 per cent, according to the Morningstar US Market Index. GDP growth may be slower than liked but stayed firmly positive. High interest and soaring debt service costs may remain a serious threat as debt renewal negotiations fall due, in particular to property companies and indebted homeowners, but for most, these are challenges yet to materialise. But when economists like Roubini warn of recession and stagflationary mega threats, they are talking about a broader combination of long-term challenges immeasurably more dangerous than two quarters of falling GDP. In his book Megathreats, Roubini makes clear he is concerned not just with economic, monetary and financial risks but also with political, geopolitical, environmental, health, technological, trade and globalisation-related ones. Asked which mega threat concerned him the most, Roubini was clear: “In the short run it is stagflation and debt crisis. Over the medium-long term, I worry about war among great powers and how much destruction it can bring, together with climate change.” Roubini is particularly haunted by rising debt worldwide, especially the soaring cost of servicing debt in an era of higher interest rates. He notes that debt worldwide (private, household, corporate, financial sector and public) was less than 100 per cent of GDP in the 1970s, but had risen to 200 per cent by 1999, and in 2022 stood at 350 per cent. In advanced economies, it was 420 per cent of GDP and climbing. According to the Development Finance International’s Debt Service Watch, governments in the Global South are spending 38 per cent of their budget revenue on debt service – equivalent to their combined spending on education, health, social protection and climate. Of these, 35 countries are spending over half of their revenue on debt service. What so haunts people like Roubini is not just the acute pressure on education and health spending, but that this huge and still rising sum is set to strangle spending on pandemic preparedness, climate change and mitigation – even as pressure grows for higher defence spending in light of conflicts in Ukraine and Gaza. He is joined by many others anxiously observing what they fear is set to become a global “polycrisis” – a concept recently popularised by historian Adam Tooze as a combination of disparate crises that interact so that the whole is more overwhelming than the sum of the parts, challenging our ability to cope and threatening to “hurtle us towards catastrophic ecological tipping points”. So what is the verdict? For those expecting a technical recession only in the US, the call was deeply and embarrassingly off target. But for those who share Roubini’s angst over mega threats or polycrisis, the alarm justifiably remains. As Harvard University’s Jeffrey Frankel noted back in July, this is like a sky diver who jumps without a working parachute. On his way down, a passing hang glider asks how he is doing and he shouts back: “OK, so far!”