For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Wednesday, 30 October 2013

"Move over, Randall Rader": scrap US Federal Court monopoly of patent cases, says judge

The excellent and ever-thoughtful Dan Bereskin QC (Bereskin Parr) has been the source of many an interesting insight from which this Kat has benefited over the years, so his emails are always welcome and eagerly devoured.  Today's epistle was no exception, Dan having unearthed a somewhat unorthodox approach to the normally accepted view that specialist tribunals do better than random ones when it comes to hosting the sort of detailed specialist litigation which characterises patent suits. Writes Dan:

"Under a 1982 Act of Congress called the Federal Courts Improvement Act, the United States Federal Circuit was granted exclusive jurisdiction over patent appeals. The motive was to reduce the lack of uniformity and uncertainty of legal doctrine in relation to the administration of patent law. Uniformity is a coveted goal in many areas of the law, but what if the result is uniformly bad?  In "Is It Time to Abolish the Federal Circuit’s Exclusive Jurisdiction in Patent Cases?", an insightful, carefully nuanced, and at times funny critique of the current system, Hon. Diane P. Wood (right), Chief Judge of the U.S. Court of Appeals for the 7th Circuit, argues that the Federal Circuit should no longer have exclusive jurisdiction over patent appeals. Instead, appellants should be able to choose between review in the Federal Circuit or in the regional circuit with jurisdiction over the district court from which the claim first was filed.

Her critique is said to rely on “three of the leading legal thinkers of our times: the Dixie Chicks (left), Robin Thicke, and Burt Bacharach.” From the Dixie Chicks’ song “Wide Open Spaces” we learn that by providing “wide open spaces” to the adjudication of patent cases, new ideas would be encouraged to “percolate and grow”. Also from the same song, “She . . . needs room to make her big mistakes”. Judge Wood argues that “mistakes teach valuable lessons”, that “a proposition that seems obvious to one person might seem questionable to another, ambiguous to a third, and flatly wrong to a fourth.”

If on occasion mistakes are made, we can learn from them, and make the necessary repairs. This surely is better than perpetuating the same mistakes as a specialized court may be more likely to do, as evidenced perhaps by the current low standard of non-obviousness which has been said to impose “a heavy tax on invention and discourag[ing] entry into innovative enterprises” (citing Rochelle Cooper Dreyfuss, "In Search of Institutional Identity: The Federal Circuit Comes of Age", 23 BERKELEY TECH. L.J. 787, 796 (2008), quoting Rochelle Cooper Dreyfuss, "The Federal Circuit: A Case Study in Specialized Courts", 64 N.Y.U. L. REV. 1, 5 (1989)).

Judge Wood makes a powerful argument for allowing regional circuits to rule on patent appeals: her remarks are well worth careful consideration".
Judge Wood’s speech was delivered as the keynote address at IIT Chicago-Kent College of Law on 26 September 2013 and can be downloaded in its entirety here.

3 comments:

Anonymous said...

A day late and a dollar short - Judge Wood's speech has been panned in several US patent arenas.

Her argument is not at all powerful as she does not really address the failed attempt at 'bubbling up' that occupied the thirty years prior to the 1982 change.

This was a story better left buried.

Anonymous said...

As a seasoned hiker, I must note that "wide open spaces" are mostly good for getting lost.
Otherwise, I'm not sure I understand the argument of this learned judge: is she suggesting that the "same old mistakes" of the Federal Circuit just aren't enough, so that the public needs some new ones? Maybe we could send her some of the decisions by non-specialized patent judges in a number of European countries: they can certainly be creative when it comes to outrageous misunderstanding of both technology and patent law...
And if, according to her, the Federal Circuit doesn't learn from its mistakes, why does she think that other judges would?

Kirk said...

I think there is a lot of food for thought in the speech. Judge Wood points out that patent courts should not be an 'arcane preserve for specialists' who don't reveal what the rules are, and so she's basically asking fundamental questions about our relationship with the law and the Courts, and highlighting the dangers of specialist courts.

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