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April 02, 2007

Comments

Whether or not it is time for the Supreme Court to stop flogging the Federal Circuit, it is surely long overdue for the Federal Circuit to get its own house in order and render consistent decisions - the bright hope that existed in 1982 for some certainty in patent law has faded into "I hope I get the right panel, and even then I'm not sure what they'll do".

Derek:

It is true that the CAFC does not always speak with one voice, but it is a little unrealistic to expect that they would. I think the most egregious examples of this tendency occur when they attempt to reach the "right" result for the parties before them and lose sight of the bigger issues of consistency. (I had a Second Circuit judge tell me that she thinks her job is to reach the correct result for the parties, and doesn't think (too much) about consistency. A very Blackstone approach to the law.)

Although imperfect, the CAFC is so much better than the original 12 circuits in rendering patent opinions that we have lost sight of how bad it was. You are (rightly) concerned about the panel you draw. At least you don't have to worry about where the defendant is located.

Thanks for the comment.

Kevin:

An elegant follow-up, and I agree with you whole-heartedly.
Anyone remember Hormel v. Central Soya - "if you're going to infringe, do it in the 6th Circuit, they haven't held a patent valid since ... ".
But I think the FedCir has become steadily less consistent (and more fractious) in its decisions. And, rightly or wrongly in any given case, disturbing settled expectations of the basis for decision without creating a clear and constant new basis is remarkably unhelpful to all.

I still think Supreme Court review of Amgen would be a good thing.

It seems that the denial of rehearing en banc showed pretty clearly how far the CAFC is willing to go if they do reconsider Cybor. And that is only to limited deference in cases where there is explicit reliance on conflicting expert testimony or the like. Such a rule would naturally be underinclusive given the "conundrum" (noted by Judge Moore) created by the CAFC's discouraging reliance on extrinsic evidence. Additionally, it ignores any other advantages district court judges might have in construing claims. Ultimately, I think it would have little or no effect on reversal rates, etc.

It is possible that, given time, the CAFC could eventually come around to a broader grant of deference in claim construction, but it is far from certain. They have had any number of chances (for example, Phillips and Amgen itself) to clean house and have consistently punted.

The comments to this entry are closed.

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