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« USPTO Revises Requirements for Patent Prosecution Highway Programs | Main | Bio/Pharm Legislation Watch »

July 19, 2011



A major difference between the Federal Circuit and the Supreme Court which is hinted at in this panel discussion is the respective judges/justices view of patents vs. antitrust. Federal Circuit judges, as rule, generally don't view patents as being "bad" because they deal with patents all the time. But Supreme Court justices generally come with an "antitrust" perspective and bias (as is evident with former Justice Stevens, and from what I can tell, especially with Justice Breyer), and thus patents are be tolerated only to the extent necessary. Only Justice Sotomayor and to a more limited extent Justice Ginsburg (through her daughter I believe) has more "real" experience with intellectual property law. Accordingly, it's not surprising to me that Sotomayor was given the Microsoft v. i4i opinion to write. In my opinion, she also did a very good job writing the opinion in i4i relative to other decisions, such as KSR International and Bilski, which (whatever your point of view of patents aside) are muddled and extremely difficult for anyone, especially us patent attorneys, to fathom how to apply the rulings consistently and rationally.

"Mr. Clement responded to Judge Michel's comments by stating that he believed the Court's interest in patent cases is "here to stay" because patents are "too darned important" to be left to the Federal Circuit. "

If he said that to someone other than judge Michel it wouldn't have been so funny.

"Judge Michel noted that the 1952 Patent Act was written very tersely and reads "more like a constitution than a statute,""

Amen to that judge.

"Judge Michel also mentioned Justice Stevens' idea that patent claims should be "deconstructed" to their "core" in deciding questions of patent eligibility, and the theoretical and practical deficiencies of that approach. "

Lulz, judge, you kidder you.

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