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October 07, 2013

Comments

Yes, but isn't the problem that if one panel decides a case a certain way, the next panel is bound? Therefore, even if individual judges disagree, there is no way to get competing approaches from opinions. Additionally, some judges will write opinions that are not consistent with prior opinions and then the precedent gets muddled because instead of competing views, the attorneys have to reconcile the approaches between cases from the same court.

"The meteoric rise of technology, to be sure, has tested the patent system."

Meteoric rise in "technology"? Relative to when? How are you measuring this "rise"?

To be sure there has been a "meteoric rise" in the number of patent applications being filed and granted by the USPTO. But there's no indication that this increase is related to any "rise of technology". It seems more likely that the increase is due to the perception that patents can be lucrative, particularly when the subject matter increasingly being pursued requires that nothing need be created by the applicant to obtain the patent except for the patent application itself.

Dear Ed,

Thanks for your rebuttal. What Chief Judge Wood proposes would make what is already a chaotic situation in patent law even more chaotic. I started practice prior to the formation of the Federal Circuit, and it was "forum shopping" to the extreme in patent cases, the 8th Circuit, as you note, being a patent graveyard.

The current technological and patent law ignorance of SCOTUS doesn't help the situation either. So adding more technologically and patent law ignorant appellate judges (there's enough of those on the Federal Circuit already) to the mix will make this already bad situation just that much worse.

Very effective answer to Wood's dubious proposal.

What Wood calls group-think is actually consistency, which was and remains the chief rationale for creating CAFC.

Moreover, it's precisely because of the lack of "group think", in other words lack of intellectual and expertly consistency of the circuit courts, that led to forum shopping.

Instead of returning to the dark days, perhaps it would even make sense to create one patent trial court, at least on some limited basis, to enhance still further consistency in patent cases.

EG's comments are spot on. Chief Judge Wood does not understand what she is suggesting.

Is it maybe time to think about going in another direction? Setting up specialist trial courts for patents and/or setting practical limits on the supreme court's ability to upset the CAFC's work might inject some badly needed tranquility and logic into the irrational chaos.

"Judge Wood suggests that having eleven regional circuits join the Federal Circuit in addressing patent law would add intellectual heft and avoid group think."

For the love of god, this. Please this.

"The Federal Circuit was created in 1982"

That's funny, me and the federal circuit were created at the same time.

"If those from afar consider a court's jurisprudence too uniform, and those up-close consider it too diverse, the likelihood is that the court has struck about the right balance."

Or else they are talking about different aspects of the court's jurisprudence and making too broad of a generalization.

"Simply put, adding the option of regional circuits to the Federal Circuit would worsen the unacceptable pre-1982 forum shopping."

On that I think I would agree with you about.

I don't rightly know what the solution is, but perhaps you are right that what she is proposing is not it. One way or another though the federal circuit needs, desperately, to end its lack of intellectual ferment and its setting of absurd precedents that vary wildly from the law as previously set down, and the law as set forth in the statute in some cases. Another way of putting it is that they need to end their tunnel vision that they were supposedly handed back in the day to bring oneness to patent law. If that can be accomplished with the sitting judges then fine, but if not, chuck em and start over, or enlarge the judiciary at the federal circuit to dilute the old members.

"The current technological and patent law ignorance of SCOTUS doesn't help the situation either. "

You know EG, if that is the case, and if it is also the case that they used to take 20 cases per term from the patent arena compared to 2 nowadays, then it is no wonder they're supposedly "patent law ignorant". And that is setting aside of course that it is them of course that ultimately set the law, and thus whoever disagrees with them is the ignoramus...

I'll be honest GD, if we hadn't already seen what setting up a specilist court in miniature does after having set up the Fed Circuit and seen it grown to love itself and its constituency of patent holders as well as patent holding itself overmuch then I might agree. As is, the situation is more or less a catastrophe waiting to eventually explode. It may be that the court itself is starting to take note of its "more outlandish" decisions needing to be revised as Prost noted the other day, but frankly I don't see that happening quickly, which is of course what is needed in such situations. The government moves so sllloowwly.


Btw, does anyone know if the CAFC is closed due to the shutdown?

If pre-82 forum shopping gave us an unacceptably dysfunctional appellate system, then outside of the FedCir, we have an unacceptably dysfunctional appellate system, since the FedCir is a unique exception to regional circuits.

I am troubled by a defense of the FedCir that is simultaneously an indictment of the rest of the federal judiciary.

" And that is setting aside of course that it is them of course that ultimately set the law, and thus whoever disagrees with them is the ignoramus..."

So you subscribe to the old "might makes right" theory, eh 6? That doesn't hold water in my book. Yes, SCOTUS is the highest court in this land, but that makes them far from infallible. And they're very fallible when it comes to understanding technology, much less patent law. Even Scalia admitted as much in Myriad.

Also, SCOTUS doesn't "ultimately set the law"; Congress does that as the Patent Clause clearly says they're supposed to do. Instead, SCOTUS is supposed to interpret the "law" that Congress enacts. But when it comes to the patent statutes, SCOTUS too often simply ignores those statutes, or at best gives them lip service. Again 6, "might doesn't make right."

"So you subscribe to the old "might makes right" theory, eh 6? "

I wouldn't say it makes "right". But I would say that when it comes to law, which only has any meaning because of the power behind it, then power absolutely makes law.

That's the way dad did it, that's the way Merica does it, and it's worked out pretty well so far.

"but that makes them far from infallible. "

Oh I totally agree. I totally agree. That doesn't magically mean that the law isn't what they say it is.

"Also, SCOTUS doesn't "ultimately set the law"; Congress does that as the Patent Clause clearly says they're supposed to do. "

They set what it means, which is practically better than ultimately setting it, especially considering how few judges there are compared to how many members of congress there are and how you need to garner "votes" to do anything in either body.

"Again 6, "might doesn't make right.""

Again EG, might does make law. In this country at any rate.

"It's worked out pretty well so far"

You like to ignore history, don't you 6?

"I would say that when it comes to law, which only has any meaning because of the power behind it, then power absolutely makes law."

Ok 6, but you obviously need a lesson in what legislative power is and who our Constitution gives that power. Legislative power is the power to make, amend, and repeal law; that's not the judicial power which is the power to interpret what that law means (i.e., does not make, amend or repeal that law). And guess what: Article I, Section 1, of our Constitution gives the legislative power solely to Congress, not to the federal judiciary, including SCOTUS. The federal judiciary can interpret what Congress has enacted as law and can declare unconstitutional laws enacted by Congress, but the federal judiciary, my dear 6, cannot make (or amend) the laws of this country.

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