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January 29, 2017


Unfortunate that such a useful decision has not been made precedental.

The CAFC is making *far* too many decisions non-precedential. In fact, the *majority* of CAFC decisions in recent years are non-precedential. I am not aware of any other circuit in which the ratio of non-prec to prec is this high. This is really an abuse of the rule that allows for non-prec decisions. Decisions of a court of appeals should be precedential by default. I agree that it is important that panels be able to set *some* decisions into a non-precedential category, but not a frank majority of decisions. What of stare decisis?

This is an entirely foreseeable side effect of the Supreme Court smacking down the CAFC.

It is time for Congress to use its Constitutional power of jurisdiction stripping to remove the Supreme Court from patent appeals (since patent appeals are not a matter of original jurisdiction for the Supreme Court), and appoint a NEW Article III court for patent appeals (an Article III court preserves the holding of "judicial review" from the Marbury case; and a new court is needed, given the rather obvious infirmity of the brow-beaten CAFC.

Is this Congress astute enough of its own power and the need and the path forward?

Sadly, I remain...

Hey Skeptical,

Well-stated. Sadly, like you, "I remain skeptical."

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