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AMANDA HERNÁNDEZ—reporter on criminal justice for Stateline. Stateline, “Shortage of prosecutors, judges leads to widespread court backlogs”, , JANUARY 25, 2024.

The pandemic worsened problems that already had caused state and local court delays, legal experts say. The hurdles include insufficient funding, judicial vacancies, lawyer shortages and delays processing digital and physical evidence. Some state legislators are particularly focused on shortages of prosecutors and judges. In Georgia, New York and Vermont, for example, lawmakers have filed or plan to offer bills that would increase prosecutor pay, boost the number of judges or streamline procedures to reduce the number of cases. “Managing cases today is much more complex on the part of our courts than it used to be, and the pandemic is just one more complexity,” said Brittany Kauffman, the CEO of the Institute for the Advancement of the American Legal System, an independent research center at the University of Denver. The bulk of the backlog in most states and counties are criminal trials. Unlike civil or family law cases, they typically cannot be conducted online because criminal defendants have a constitutional right to face their accusers. The backlog poses significant challenges for defendants, whose right to a speedy trial can be jeopardized by extended pretrial detention. Those held in jail during pretrial detention may lose jobs and experience housing instability. And for crime victims, extended court proceedings can make navigating the already complex justice system even more difficult, said Renée Williams, the executive director of the National Center for Victims of Crime. “[Victims] are very much facing the justice system alone and kind of left to navigate the best they can, so when we start to see court backlogs, that becomes especially an issue because there might be a lack of communication to them about what’s going on,” Williams said in an interview. As proceedings drag on, there’s also a higher chance that victims may face intimidation or retaliation for coming forward — discouraging them from participating altogether, Williams said. Too few prosecutors. Public defenders and prosecutors are leaving in large numbers because of low salaries and heavy caseloads, with a shortage of applicants to fill the gaps, legal experts said. In Georgia, the five-year average turnover rate for assistant district attorneys is 25%, coupled with a 10% vacancy rate for state prosecutors, according to data from the Prosecuting Attorneys’ Council of Georgia, which assists and provides training for state prosecutors. In 2021, the state saw its highest turnover rate for a single year, peaking at 43.5%. Something has to be done, because if we can't get people to be prosecutors and public defenders, the system will come to a grinding halt. – Peter Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia Eight of the state’s 49 judicial circuits are facing assistant district attorney vacancy rates exceeding 25%, according to the group’s data. “Something has to be done, because if we can’t get people to be prosecutors and public defenders, the system will come to a grinding halt,” said Peter Skandalakis, the executive director of the Prosecuting Attorneys’ Council of Georgia. “It’s already slow enough.” The shortage of state prosecutors comes down to noncompetitive pay, said Coweta County District Attorney Herb Cranford Jr. Prospective assistant district attorneys often opt for positions in urban metro areas, where salaries are higher, leaving rural areas with fewer resources. Georgia’s decades-old state formula, which determines the number of assistant district attorneys, compounds the issue. The formula limits the state to paying for one assistant district attorney per judge in each judicial circuit. This formula, dating back to at least the 1980s, fails to consider factors such as population growth and caseload size, Skandalakis said. “The most populated judicial circuit is treated the same as the least populated judicial circuit. That is just not a good way to do business,” he said. Cranford said that while changing the formula may help reduce the state’s backlog, addressing pay would have more of an impact. “We can add as many prosecutors as we want. If we don’t address the competitive pay problem, it’s not going to matter because we can’t even fill the current positions we have,” Cranford said Georgia Republican state Sen. Randy Robertson said he’s open to exploring budgetary options that would offer better pay and benefits to state prosecutors while also ensuring “good return on the taxpayers’ investment.” Robertson said he also plans to address the state’s assistant district attorney formula. “We absolutely need to look at the formula and make sure that we’re giving the courts that need it as much help as possible, and at the same time, making sure that some of the circuits aren’t overloaded,” Robertson said. Judge vacancies In both New York and Vermont, judge vacancies are chief among the reasons for the states’ court backlogs. In September, the New York City Bar Association released a report calling on the state legislature to work toward repealing the state’s constitutionally prescribed cap on the number of judges that can be elected to the state’s supreme courts. The state has one supreme court per county, totaling 62 across the state. The cap, originally enacted in 1846, limits the number of state supreme court judges to one for every 50,000 residents of a judicial district.

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, [genocides] 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.

The most obvious response to the ill winds blowing from the world’s autocracies is to help the winds of freedom blowing in the other direction. The democracies of the West cannot save themselves if they do not stand with democrats around the world.

This is truer now than ever, for several reasons. We live in a globalized world, one in which models, trends, and ideas cascade across borders. Any wind of change may gather quickly and blow with gale force. People everywhere form ideas about how to govern—or simply about which forms of government and sources of power may be irresistible—based on what they see happening elsewhere. We are now immersed in a fierce global contest of ideas, information, and norms. In the digital age, that contest is moving at lightning speed, shaping how people think about their political systems and the way the world runs. As doubts about and threats to democracy are mounting in the West, this is not a contest that the democracies can afford to lose.

The world was a far more dangerous place when you were born. Death tolls from wars in the 1970s and 1980s were 4–5 times higher than they are today. We are, despite reports of religious and political insurgencies, despite high-profile terrorist killings and unrest in various corners of the globe, living in the most peaceful era of our species’ existence. The world is getting less violent; we’re just more aware of the violence that happens, thanks to the mass availability of information. And unfortunately, the media and our politicians use that information to make it look as though we’re doing worse than we actually are. , so I won’t get into it into much detail. Suffice to say we have some evolutionary hangovers that leave us ill equipped to think about this stuff properly. So what’s happening here? Why is war declining? Well the answer is complicated, but a big part of it seems to be that our institutions are getting better. After centuries of hard earned lessons, people are starting to understand that governance really matters. Democracy is today than ever before (and despite all its obvious flaws, it’s still a hell of a lot better than authoritarianism and feudal serfdom). Since democracies don’t usually go to war with each other, the likelihood of interstate war, which kills more people than the kinds of intermittent, non-state conflicts we see today, is declining. As the world becomes more interconnected, the powerful have ever more incentives to avoid the catastrophic economic consequences of going to war too. Conflict isn’t good for your economy in a world of dense trade networks and digital flows.

Noam Chomsky has warned that the world is at the most dangerous moment in human history owing to the climate crisis, the threat of nuclear war and rising authoritarianism. In an exclusive interview with the New Statesman, the 91-year-old US linguist and activist said that the current perils exceed those of the 1930s.

“There’s been nothing like it in human history,” Chomsky said. “I’m old enough to remember, very vividly, the threat that Nazism could take over much of Eurasia, that was not an idle concern. US military planners did anticipate that the war would end with a US-dominated region and a German-dominated region… But even that, horrible enough, was not like the end of organised human life on Earth, which is what we’re facing.”

These heavy workloads can take a toll on judges; in four districts, interviewees explicitly raised the concern of burn-out due to the burdens of compensating for long-term vacancies (E.D. Cal., S.D. Fla., D. Nev., E.D. Tex.).59 Chief Judge Davis in the Eastern District of Texas, for example, described the “long-term tolling effect on the judges” from his district’s two vacancies, citing an impact on “morale.”60 He added, “I sense a weariness and a tiredness on behalf of our district judges, especially ones that have to travel long distances [because of vacancies].”61 Judge Davis speculated that this long-term toll was encouraging judges in his district to retire, noting that the number of senior judges in his district has declined as more judges chose to leave the bench altogether when they reached retirement age.62 Chief Judge Federico Moreno in the Southern District of Florida likewise highlighted the toll that vacancies in his district placed on judges, despite observing that he did not think the vacancies were impacting the administration of justice.63 “It’s like an emergency room in a hospital,” he observed. “The judges are used to it and people come in and out and get good treatment. But the question is, can you sustain it? Eventually you burn out.”64

In two districts, interviewees also highlighted the burdens on senior judges who had retired from active service while continuing to carry full or close-to-full caseloads,65 arguing that it “wears [them] down.”66 The Clerk of Court in the Western District of Wisconsin commended the district’s senior judge as “working as hard or harder than before she retired.”67

Despite these criticisms, Congress's decision to create the Federal Circuit has been, from most perspectives, a "success." Industry groups are largely satisfied with the court, other countries have begun imitating the U.S. patent institutional structures, and generalized appellate courts have rarely complained about the absence of patent cases on their dockets. As hoped, the court's virtual monopoly over patent appeals has eliminated patent forum shopping, at least at the appellate level. The court has also implemented a number of procedural and case management innovations that have improved the predictability of patent [*978] enforceability and standardized various aspects of patent litigation. Most importantly, some observers credit the court with making substantive alterations to patent jurisprudence that have resulted in increased predictability across the most critical aspects of patent enforcement including infringement, validity, and licensing.

Court “, https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1309&context=iplr published 2017, accessed 6-11-2024]

The third factor of concern is the amount of time it takes to process a copyright infringement claim in the federal courts. A civil case that goes through the federal court system has a median time of twenty-five months.139 The foremost of the factors causing this delay is case backlog.140 Currently, in the US federal court system, there is a backlog of more than 340,000 pending civil cases.141 Additionally, this number does not reflect that the federal courts must attempt to resolve criminal matters before they address civil ones in circumstances where it is reasonable to do so, and the number of backlogged criminal cases is over 80,000.142 While the nature of criminal cases can make the delay seem justifiable, it does not change the fact that copyright gets put on a backburner and “if decisions on contracts, mergers and intellectual-property rights can’t be reached through quick and prompt justice, things unravel for business.”143 This kind of time investment is not feasible for the average individual or amateur creator.144 Judge Lawrence J. O’Neill spoke on this issue stating “[o]ver the years I’ve received several letters from people indicating, ‘Even if I win this case now, my business has failed because of the delay. How is this justice?’ And the simple answer, which I cannot give them, is this: It is not justice. We know it.”145

Bell, Abraham-- Professor, Bar-Ilan University Faculty of Law; Professor of Law, University of San Diego School of Law; and Gideon Parchomovsky-- Robert G. Fuller, Jr. Professor of Law, University of Pennsylvania Law School and Professor, Bar-Ilan University Faculty of Law. 2014. “Reinventing Copyright and Patent.” Michigan Law Review 113 (2): 231–78. https://search-ebscohost-com.gonzaga.idm.oclc.org/login.aspx?direct=true&AuthType=ip,cookie,url,uid&db=lgs&AN=99133160&site=ehost-live.

For users and creators of intellectual products, the vague standards mean that litigation over rights can be a roll of the dice. Not all users and creators are equally risk averse. Some creators are happy to take their chances, imposing high costs of risk on all potential risk-averse users. This imposition of risk can constitute a substantial cost to society. High search costs combine with the vagueness of intellectual property rights to make enforcement even more costly for society. The vagueness itself exposes users to high search costs; even where users discover the existence of a protected right, they cannot easily discern what is protected and what remains in the public domain. It bears emphasis, however, that the problem of search costs is distinct from the vagueness problem and that high search costs stem from several sources. The problem is most acute in the context of copyright law, where protection is not conditioned on registration and where most works are not organized in a searchable database or a central repository. Additionally, the tools available for searching copyrighted works are relatively limited.60 While one can search for combinations of words and even for musical compositions and recordings, a potential user will find it very difficult to design effective search algorithms for color combinations, compositions of dance steps, or the design of useful articles. The search tools are even less effective if copyright protection inheres in the selection and arrangement of the constitutive expressive elements of the work.61 Compounding the problem is the fact that legal copyright rights can be nested, meaning that a single expression may turn out to be subject to several different intellectual property rights owned by several different parties, all of which must be collected in order to use the work.62 For instance, a user’s ability to broadcast a film may be subject not only to the rights of the owner of the copyright in the film but also to the rights of the owner of the novel on which the screenplay for the film was based.

From a more practical standpoint, there are also genuine concerns that the proliferation of claims produced via AI may burden the patent offices by increasing their workload to an unprecedented extent. 49 The growth of prior art references requiring examination may jeopardise the efficiency, sustainability and the level of scrutiny currently applied to applications.50 Maintaining the existing examination standards may what therefore require more resources to be allocated to survey the enormous prior art universe, greatly increasing the costs associated with examination and requiring examiners who are both knowledgeable in the field and skilled at analysing computer-generated texts.51

Erica Fraser-- Associate Professor Carleton, University of Edinburg, “Computers as Inventors---Legal and Policy Implications of Artificial Intelligence on Patent Law”, 322-323. 2016.

The development of inventive AI technologies could cause a flood of patent applications, whether for the individual results or for broader classes of inventions.152 As a result, innovation could be stifled as anyone working in the field would need to obtain licenses for numerous patents.153 It also raises the spectre of patent thickets developing, where certain entities who possess the resources to obtain countless patents have the savvy to recognise this new fertile ground, thereby concentrating legal and economic power within particular fields or markets.154 Either way, potential innovators could have little freedom to operate or be faced with paying prohibitively expensive licensing fees. Moreover, as discussed earlier with respect to the filing of computer-generated patent texts, it is unlikely that already-taxed patent offices would have the resources to effectively process such a flood of applications, resulting in delays and possibly the issuance of lower-quality patents.155

Bell, Abraham-- Professor, Bar-Ilan University Faculty of Law; Professor of Law, University of San Diego School of Law; and Gideon Parchomovsky-- Robert G. Fuller, Jr. Professor of Law, University of Pennsylvania Law School and Professor, Bar-Ilan University Faculty of Law. 2014. “Reinventing Copyright and Patent.” Michigan Law Review 113 (2): 231–78. https://search-ebscohost-com.gonzaga.idm.oclc.org/login.aspx?direct=true&AuthType=ip,cookie,url,uid&db=lgs&AN=99133160&site=ehost-live.

While all areas of the law confront enforcement questions, enforcement is particularly problematic in intellectual property due to the law’s provision of the same expansive list of remedies to all holders of intellectual property rights. The remedy menu includes preliminary and temporary injunctions, actual damages, defendant’s profits, statutory damages, and in particular cases enhanced statutory damages and treble damages.51 Certainly in some cases, one or more of these remedies is appropriate for enforcing intellectual property rights. But just as certainly in other cases, the impressive array of remedial options is too much. The panoply of remedies may deter some kinds of optimal use of protected intellectual property rights, leaving potentially high-value users of the entitlement without a realistic possibility of enjoying the benefits of the intellectual property. In some instances, two other factors may combine with the array of remedy options to complicate further this enforcement problem and lead patent and copyright holders to refrain from voluntarily transacting with potential users of the invention or expressive work. These two factors are the vagueness of intellectual property rights and the high search costs for users. Together, the factors enhance the attractiveness of litigation as opposed to standard licensing. As a result, they may lead owners to rely on infringement litigation to generate revenue rather than licensing their inventions or expressive works. Consequently, owners may make more money by foiling use of intellectual property works than by facilitating use of them. The vagueness of intellectual property rights imposes a significant degree of uncertainty on third parties. Intellectual property law protects intellectual assets not only against direct infringements—that is, cases involving exact replications of the intellectual asset. It also protects against indirect infringements—that is, cases involving close approximations of intellectual assets.52 The former type of protection may be termed central protection and the latter peripheral protection. Peripheral protection of intellectual assets makes it very difficult for third parties to discern the precise boundaries of intellectual assets. Unlike the readily identifiable boundaries of physical assets, the outer contours of intellectual property assets are elusive and indeterminable ex ante. Doctrines such as pattern similarity in copyright law5 and the doctrine of equivalents in patent law54 expose even the most diligent of users to the risk of potential legal liability. Moreover, in many cases, it is unclear whether an intellectual product constitutes protectable intellectual property at all. Patent law requires registration of inventions as a prerequisite for legal protection, but registration of a patent does not actually guarantee that the law protects the invention.55 The validity of intellectual property rights in a new invention may always be attacked in court.56 This means that it is very difficult for potential users of an invention to know whether that work enjoys any legal protection. Roughly half of all registered patents that are attacked in court are found to be invalid.57 In some ways, the situation is even worse in the case of copyright. Copyright law does not require registration of the expression in order for the work to constitute intellectual property,58 and, in any event, registration does not guarantee that the claimed property is actually protectable under law.59 It is often difficult for potential users of expressions to be certain that there is any intellectual property to infringe

Michael L P. Ellenberger—JD, Northwestern Pritzker School of Law; patent attorney, researched with National Institutes of Health. McNeill Baur, “The Waiting is the Hardest Part: Does Longer Patent Pendency Mean More Valuable Patents? “, . 2019.

The United States Patent and Trademark Office (USPTO) is one of the busiest patent offices in the world, fielding approximately 500,000 newly filed utility applications annually, and receiving more certified mail per day than any other single entity.1 At such a volume, the time from application filing to issuance is long. Owing to a myriad of factors, the average pendency period in the United States is 25.3 months and can be as long as twenty-eight months for “Networks, Multiplexing, Cable, and Security,” a burgeoning and crowded art space.2 Patent pendency is frustrating for the impatient but potentially lethal for the startup.3 A recent report from the UK Intellectual Property Office estimated that the “combined losses from each year of backlog in the U.S. Patent and Trademark Office, Japan Patent Office, and the European Patent Office [combined] costs the global economy over $10 billion a year.”4 While the pendency brings the costs of lost revenue, it does not necessarily impact the quality of the applications across four classifications: market value, signal, impact, and reputational considerations. Compared with the bifurcated search and examination stages before the European Patent Office (EPO), the USPTO consolidates the two steps into one, increasing complexity and stress on examiners in their limited time and incorporating additional sources of error.5 Research suggests that the time allotted to each examiner per patent, absent the already inherent intellectual rigor of the position, induces examiners to grant invalid patents already “on the margin.”6 Coupled with a backlog of a half million patents still awaiting examination, the incentives for an examiner to rush through an application and render a quick, rather than quality, decision is all too high.7 Moreover, the view that disclosure-for-monopoly rights is the driving force for patent law in the United States is a faulty “simple view” of intellectual property rights, and one wherein “inventors should be loath to disclose any more information than necessary to obtain patent protection.”8 Mere patent protection provides insufficient incentive for a complete disclosure: such an arrangement is too weak to drive the engine of patent law. There must be more. Undoubtedly, if patents are considered to have “quality” only if they are both (a) valid and (b) litigation-proof, then the USPTO is failing. Patents are continually challenged, overruled, or invalidated before district courts, the Patent Trials and Appeal Board (PTAB), the Federal Circuit, and the Supreme Court. If instead the consideration is broadened as to what it means for a patent to be “high quality”—if the introduction of patent signaling, reputation, or minor, readily implementable tweaks to the Patent Office are allowed to hold worth— then the situation looks far from disastrous. Part I of this note will look at the Patent Office’s function and the factors that feed into pendency: application backlog, examiner incentives, and rate of application. Part II will investigate the value-quality-worth dynamics of patents, and how pendency, while depriving applicants of raw financial gain, may not inhibit a patent’s value. In doing so, Part II will further develop a new multifaceted model for patent value. Finally, Part III will consider potential improvements to the patent system in the United States, improvements that will decrease patent pendency without harming patent value when considering the new paradigm proposed in Part II. I. PATENT OFFICE FUNCTION A. Pendency. The lack of expedited service at the USPTO is largely due to the substantial number of patents previously filed but not yet examined, a backlog further exacerbated by the uptick in filings in the 21st century.9 The USPTO handled 629,647 applications in 2015—including utility (589,410), design (39,097), and plant (1,140) patent applications.10 325,979 patents were granted.11 According to the Patent Office’s 2016 Performance and Accountability Report (PAR), patent applications on average received a first action within 16.2 months of filing and remained in the Patent Office 25.3 months.12 While the total pendency measure is within the USPTO fiscal year 2016 target, the time to first action—the period it takes an examiner to determine faults or deficiencies in the filed application—is slower than the USPTO’s published target of 14.8 months.13 That’s not to say change hasn’t come. At the start of the Obama Administration in 2009, the USPTO backlog of unexamined patent applications was about 750,000.14 Driven by USPTO protocol and an increased awareness of such slog, backlog was cut by over 200,000 in the 2016 fiscal year, a 28% decrease in spite of an annual increase in filings of almost 4%.15 Along with shortening the backlog, the USPTO has continually chipped away at pendency, cutting the figure from 25.9 months in January 2009 to 16.2 months in September 2016.16 All of this, says the USPTO, “means that deserving patented technology can reach consumers at home and around the world sooner than they would have in the past, further driving innovation and economic growth.” 17

Additional judicial resources would be spent handling cases with conspiracy claims that meet the “parallel behavior is enough” standard. These include expenditures for personnel and other judicial resources. They also include the opportunity cost of the federal judiciary’s time. Assuming the federal courts (and their facilities and staff’) cannot expand to meet the additional litigation that would result under the “parallel behavior is enough” standard, the federal court dockets would become more congested. Other matters would receive less attention from the courts. The litigants in these other matters, and ultimately society, would suffer from the diversion of judicial resources to unmeritorious conspiracy claims. Businesses would also spend resources defending unfounded conspiracy claims. These costs would include direct litigation expenses such as hiring lawyers and handling document production. More importantly, they would include *14 the opportunity cost of management and staff time spent on litigation rather than on business matters.12

Bell, Abraham-- Professor, Bar-Ilan University Faculty of Law; Professor of Law, University of San Diego School of Law; and Gideon Parchomovsky-- Robert G. Fuller, Jr. Professor of Law, University of Pennsylvania Law School and Professor, Bar-Ilan University Faculty of Law. 2014. “Reinventing Copyright and Patent.” Michigan Law Review 113 (2): 231–78. https://search-ebscohost-com.gonzaga.idm.oclc.org/login.aspx?direct=true&AuthType=ip,cookie,url,uid&db=lgs&AN=99133160&site=ehost-live.

As a result of the combined impact of an impressive array of remedial options, vagueness of rights, and high search costs for users, patent and copyright holders often find it more profitable to generate revenue through litigation than by commercializing their inventions and expressive works. This explains, in part, the emergence of so-called patent and copyright trolls—or, in less colorful terms, “non-practicing entities”—that amass portfolios of intellectual property rights without ever intending to turn them into fully developed products subject to market transactions. The sheer volume of intellectual property remedies, the vague content and scope of the rights, and the attendant high search costs make conflicts over intellectual property rights more likely to occur than disputes over other legal rights. The upshot is that holders of intellectual property rights rely on the court system at a disproportionate rate. It is important to emphasize that part of the cost falls on the rest of society. The private cost of litigation does not equal the social cost.66 The public purse partially subsidizes the operation of the legal system. This social subsidy gives private litigants an incentive to utilize the legal system. Thus, inefficient enforcement is costly to society both directly and indirectly. Uniform rules contribute significantly to the inefficiency of intellectual property enforcement.

An immediate logistical challenge is that of accommodating a growing volume of patent applications as thinking machines, with their ability to learn and the harnessing of low cost, high power computing, generate increasing numbers of patentable inventions. In 2015 the USPTO received 629,647 patent applications and granted 325,979 patents, almost double the applications received and grants made in 2000.71 The volume of both patent applications and patents granted continues to grow, and an expansion of thinking machines in the process is likely to fuel even faster growth. Higher volumes of patent applications will negatively impact the speed of prosecution, the quality of screening and evaluation, and the ability of the USPTO to maintain and search prior art databases. In addition to volume, the nature and complexity of the inventions could change, and the process by which inventions are discovered will change. Differences in the invention process could create difficulties in applying existing USPTO patent application examination and search procedures to evaluate machine-generated inventions. Greater technical understanding may be required to evaluate inventions generated by computers that have massive computational abilities and databases to draw upon. Thinking machines may be capable of generating results that are beyond the understanding of the people charged with evaluating them, requiring careful thought about whether to add new subject matter categories and new metrics for determining patentability. The thinking machine paradigm will require both familiarity with the nature of the machine processes and the ability to understand, interpret, and compare the claimed results. Finally, administrative requirements such as the requirement that the application be made by the inventor and include an oath from the inventor that he or she is the original inventor, and the requirement on applicants to disclose all information material to patentability, will need to be rethought where the invention is generated by a machine rather than a human inventor.72

Nate Raymond—reporters. Reuters, “US judiciary set to receive modest spending boost from Congress“, https://www.reuters.com/legal/government/us-judiciary-set-receive-modest-spending-boost-congress-2024-03-21/, 3-21-2024

A bipartisan $1.2 trillion spending package unveiled by U.S. congressional leaders on Thursday would provide a modest increase in spending on the federal judiciary, but falls short of what the court system had sought. Set for a vote in the Republican-controlled House of Representatives on Friday, the spending package would increase discretionary spending, opens new tab on the judiciary for the 2024 fiscal year to $8.63 billion, up 2% from 2023. That's below the $8.95 billion the judiciary had asked for in December when it reduced an earlier request for an 8% spending increase to just a 5.8% boost as a result of scaled-back hiring and investments that it said could offset its 2024 needs. Funding for court security would remain flat at $750 million even as the U.S. Marshals Service is reporting that serious threats against federal judges had increased to 457 in fiscal year 2023, from 224 in fiscal year 2021. The judiciary had asked for $783.2 million to bolster security, a 4.4% increase from what the 2023 budget provided. The judiciary in 2023 received an additional $112.5 million in supplemental funding to improve courthouse security. "I understand members of Congress want to rein in certain categories of spending, but keeping judiciary security funding flat at a time of rising threats against judges seems unwise," said Gabe Roth, who heads the court reform group Fix the Court. A summary of the spending bills by Republicans on the House Appropriations Committee said the legislation "provides adequate resources to ensure an impartial, strong, and secure judiciary." The U.S. Supreme Court would receive $129.3 million in discretionary funding for salaries and expenses, an 18% increase from 2023, while spending for the care of its building and grounds would drop nearly 30% to $20.7 million. The legislation increases spending on federal public defenders from prior versions of the bill, after the judiciary and Democratic Senate Judiciary Committee members warned of steep job cuts if funding was not boosted. The $1.451 billion provided for federal public defenders is an increase of $68 million above fiscal year 2023, though it still falls short of the $1.5 billion funding that the judiciary argued was needed. Based on the new proposed spending levels, the Administrative Office of the U.S. Courts said a hiring freeze for federal defenders' offices nationally that began in July 2023 was being lifted immediately. Melody Brannon, the federal public defender in Kansas who helped respond to congressional requests for information on spending, in an email said she was grateful Congress recognized the shortfall public defenders faced in earlier budget drafts. "We remain underfunded and it is vitally important that we get the resources we need for FY 2025," she said. "But we are breathing easier today."

AMANDA HERNÁNDEZ—reporter on criminal justice for Stateline. Stateline, “Shortage of prosecutors, judges leads to widespread court backlogs”, , JANUARY 25, 2024.

Still reeling from the COVID-19 pandemic, court systems in many states are working to clear their case backlogs. Some court systems have moved cases faster using virtual court proceedings, court data dashboards and online jury selection. In other states, lawmakers are stepping in. The pandemic worsened problems that already had caused state and local court delays, legal experts say. The hurdles include insufficient funding, judicial vacancies, lawyer shortages and delays processing digital and physical evidence. Some state legislators are particularly focused on shortages of prosecutors and judges. In Georgia, New York and Vermont, for example, lawmakers have filed or plan to offer bills that would increase prosecutor pay, boost the number of judges or streamline procedures to reduce the number of cases. “Managing cases today is much more complex on the part of our courts than it used to be, and the pandemic is just one more complexity,” said Brittany Kauffman, the CEO of the Institute for the Advancement of the American Legal System, an independent research center at the University of Denver. The bulk of the backlog in most states and counties are criminal trials. Unlike civil or family law cases, they typically cannot be conducted online because criminal defendants have a constitutional right to face their accusers.

As court backlogs continue to grow, everyone is looking for ways to expedite the legal process while maintaining the sanctity of the court. Whether it's judges or law clerks, attorneys or clients, moving things along quickly without sacrificing integrity is imperative. The need to reevaluate how courts can increase efficiency has become more and more critical. The courts have always been considered a pillar of tradition and formality. And sometimes formality slows progress. Legal technology, such as electronic filing and online legal research, helped streamline certain aspects of the court system. But with a growing backlog and no clear plan of how to increase efficiency and improve processes on a large scale, its an extraordinary challenge for the courts. They must learn how to carve a way forward, giving everyone their day in court while ensuring the process is still held to the same high standard. Maneuvering through this environment will involve a great deal of foresight and innovation. What transpires during these times will likely give us insight as to how the courts will continue to progress—and may even offer a glimpse into the court of the future. What have courts been doing so far? Judges, attorneys, and clients have adapted quickly to the virtual courtroom setting. Using tools like Zoom, YouTube, and even Facebook Live, the court system has often kept up with non-jury hearings and other matters while maintaining the standards expected of a public hearing. They have worked through many of the glitches of using legal technology, and they now feel relatively comfortable in this new way of operating. In fact, some judges have noted that virtual courtrooms have increased their efficiency in getting through those proceedings. Going virtual has eliminated the need for judges to travel to different courts; less traveling means they can get through their dockets much more quickly. The same time-saving benefit holds true for attorneys and their clients. Unfortunately, the current inability to conduct virtual jury trials means many criminal and civil proceedings have been stalled. As months go by, those backlogs continue to grow. How will courts get through the backlog? Efficiency in all areas is going to be key in moving ahead and catching up. Courts need to explore their ability to speed things up, and this will be an ongoing necessity. One such way is to quickly adopt new legal research technology that focuses on making courts more efficient. Fortunately, that technology exists. Westlaw Edge's Quick Check Judicial helps judges and law clerks quickly analyze and review multiple documents from a single matter. This can reduce the time the courts—as well as attorneys—need to pore over legal briefs and documents. By decreasing the amount of time it takes to manually check citations and quotations across multiple filings, courts can review documents at a speed not previously possible. This type of dramatic time-saving resolution will be key. Stick with what's working Another way courts would like to get through the backlog is to continue with virtual hearings. There is hope that they will be able to continue holding proceedings for hearings and matters that have been held virtually throughout the pandemic. The increased efficiency that is noted above may be critical to working through the backlog. If that continues, they can more easily get through those cases while also adding back in jury trials and other in-person proceedings.

Judicial Shop “Discover Strategies To Make Court Run More Efficiently“, https://judicialshop.com/blogs/news/discover-strategies-to-make-court-run-more-efficiently, 2-8-2024,

Courts nationwide are implementing modernization principles, leveraging digital technology and data-driven strategies to improve efficiency and accessibility. With the rise of legal tech, courts are prioritizing streamlined case processing and sentencing reforms, aiming to reduce delays and enhance overall system effectiveness. Additionally, global shifts towards online court proceedings during crises reveal a commitment to embracing modernization for improved efficacy. These efforts underscore a concerted push by court leaders to better serve litigants while addressing budget constraints, increasing caseloads, and workforce limitations. Efforts in modernizing civil courts reflect a forward-thinking approach that seeks to balance limited resources with the imperative of delivering fair and accessible justice. Through strategic use of legal technology and data analysis, courts aim to streamline processes while maintaining the integrity of the judicial system. Notably, these advancements align with broader trends in utilizing digital solutions for societal progress—ultimately shaping a more efficient and equitable future for civil courts. CONCLUSION In conclusion, modernizing civil courts is crucial for improving access to justice. Clear and timely information can help individuals navigate legal processes more effectively. Utilizing judges more efficiently and addressing logistical challenges are key strategies to enhance court efficiency. Providing useful resources for court users and taking an innovative approach can contribute to a faster, fairer justice system. By focusing on these strategies, we can work towards a more accessible and efficient court system.