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« USPTO Holds Forum on Interim Guidance -- Part I | Main | Rep. Goodlatte Introduces His Patent Reform Bill (Again) »

February 04, 2015



I side completely with Newman's dissent. Dyk's majority opinion is an utter travesty, including suggesting that the patentee should use mandamus to challenge an egregious violation of the IPR statutes. How can Dyk with a straight face suggest that even an egregious violation by the PTAB of the IPR statutes is unreviewable as somehow comporting with "due process" when it takes a patentee's statutorily recognized "property"? I suspect this panel decision will go to the en banc Federal Circuit, and I do hope that a majority realize the "due process" implications of Dyk's opinion, as well as Newman's correct interpretation of the proper claim construction standard for IPR.

Andrew: Do you think the Chief Judge has found her "hitman" in Judge Dyk? Have you noticed that Judge Dyk seems to get the cases where a decision (written by him, joined frequently by a judge on senior status) further weakens patent protection? Seems unlikely to be a coincidence.

While I share EG's sentiments, I am less sanguine about both the chances of this case being taken up en banc and the likelihood of it being overturned in the course of such review. I am curious to see what happens when the same BRI question arises in a case with a different panel: in principle the later panel is supposed to follow the ruling of the first panel that dealt with a matter of first impression. But we've seen enough CAFC cases where that didn't happen (or where later panels even strayed from earlier *en banc* decisions) that it's not a foregone conclusion that this panel's view of BRI in IPR will be followed by later panels.


Note David Boundy's excellent article just posted on the administrative law/procedure problems with In re Cuozzo Speed Technologies: http://patentlyo.com/patent/2015/02/administrative-attorneys-technologies.html . It reaffirms that I’m not alone in wondering how Dyk’s majority opinion can possibly comport with due process and the APA.

I note in the comments there the "skepticism" being afforded the earned respect and the great power/great responsibility duality that comes with wearing those black robes.

Officers of the court have a duty to remind the court when they stray. All too often I see a very much "look the other way because I like the result" attitude expressed. It is a sickness in our ranks that philosophy is pursued at the expense of law - and this sickness needs to be treated no matter whom has become infected.

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