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« Conference & CLE Calendar | Main | Zeroclick, LLC v. Apple Inc. (Fed. Cir. 2018) »

June 24, 2018

Comments

In the big picture, Western Geco is pretty small beer. This is a quirky factual situation that does not come up much, and the future relevance of this precedent will be correspondingly slight.

The most interesting point of this case is that it featured a pairing of Justices Gorsuch and Breyer in dissent. Breyer is probably the worse currently serving justice on IP issues, and well positioned to occupy a "top ten" slot in the "worst IP justices of all time" category. I think a lot of people looked at Justice Gorsuch's dissent in Oil States and took this as evidence that he was going to be the vanguard of a new, better approach to IP on this Court. The fact that he wrote an opinion that Breyer could join, however, should give us occasion to reconsider that hopeful view.

Greg DeLassus offers: "and the future relevance of this precedent will be correspondingly slight."

I do not agree.

I do not equate the degree of slightness of relevance to the sparsity of the occasion to which the law is called to be applied.

On every occasion to which the law to be applied will be called, this decision will be seen as critically changing the dynamic of the law. And the relevancy - I would posit - is at the other end of the scales. This is highly relevant and is so as the effect will change the entire approach that parties take in consideration as to when they choose to make this (possible less frequent) area of law to be a point of contention.

Further, the "odd bedfellows" pairing of Breyer (who has shown an eagerness to disdain patents at EVERY opportunity) to join Gorsuch in dissent appears to be overplayed by Mr. DeLassus (who has made the same exact comment on several blogs, and on one, notably admitting to making the comment prior to reading the dissent of Gorsuch.

I have to wonder if that dissent has been read yet, prior to the mirror comment here.

Gorsuch simply attempts too much, and his reading reflects the wooden reading prior to Congress acting against Deepsouth. His "spin" of "apparently Congress agreed" is the wrong takeaway of Congress acting AFTER Deepsouth to undo what the Court had done.

I will agree that this type of "arrogance of decision" bodes ill for patent law, though. The only way forward when the "Supreme" body cannot see its own misdeeds is then to take that body out of the picture.

Congress, of course, has the Constitutional power of jurisdiction stripping, given as patent appeals are NOT a matter of original jurisdiction of the Supreme Court.

Will Congress get their act together to do what is needed?

Alas, I remain ever:

The comments to this entry are closed.

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