Judge: Abolish Exclusive Jurisdiction of CAFC Over Patent Appeals

Chief Judge Woods of the Seventh Circuit spoke recently and said that the CAFC was "uniformly bad."  An article with link to the text of her remarks, is here.  The link to the text is here.

Wow.

I started doing patent cases in September, 1989.  At that time, I could argue anticipation from multiple unrelated references.  Claim construction?  Maybe leave it for the jury, maybe the judge, maybe never decide it.  DOE was the wild west.  The court has done a lot of good.

Nowadays the disputes to me are narrower, but important.  Section 101 is an obvious (ha, ha) area where the make-up of the panel could be outcome determinative.  But that would probably be the case no matter who was trying to understand what the Supreme Court believes the law ought to be.  

Those key splits I mentioned up front were, in contrast, fundamental questions that had never been resolved among the circuits despite 30 years of work with the patent act.   Patent law is a lot better than it was — better — and it is a lot more efficient than it was — I know who is going to tell me what the claim means, and a lot of (albeit indeterminate) rules to help me figure that out.  DOE is nowhere like it was.  Damages — you would not recognize the damaegs theories we used to be able to assert.

Could it be better?  I have no doubt about that it can: it is a human institution.  The role of prior panel decisions sometimes is not given enough weight (a pet peave I'll write about under Section 285, shortly).

Would replacing it with the "old" system make it better?  I have no doubt whatsoever that it would not.  I have no doubt it would make things worse.  

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

8 thoughts on “Judge: Abolish Exclusive Jurisdiction of CAFC Over Patent Appeals

  1. 8

    I receive an email style of ‘blog’ from Hal. I believe that all you need to do to be added to the distribution is to send him an email at Foley & Lardner.

  2. 6

    Hal Wegner has joined the discussion, revealing Chief Judge Woods reliance on earlier works (works that were previously criticized).

  3. 5

    I wonder if someone has already written an article laying out these fundamental clarifications since 1982… that were not fixed by the “better” regional approach, and, further, the awful things that had developed in regional circuit law that led to Congressional creation of the CAFC in the first place (wild differences among circuits in a national economy is not what we needed then, certainly not now in a global one!).

  4. 4

    Now receiving some attention over at PatentDocs.

    Did not realize that this judge is receiving some consideration for the Supreme Court – which makes her views (and misunderstanding of patent law) even more dangerous.

  5. 3

    One aspect not discussed in the article by Judge Woods, but pertinent to your desire as stated above (CAFC more direct) is whether or not the CAFC can meet its mission as mandated by Congress – given how the junior court has been mauled of late by the Supreme Court on patent (non-constitutional) issues.

    The CAFC (understandably – although still not necessarily rightfully) has been reduced to a ‘prep’ court, rather than making hard and fast decisions. It seems like any difficult decision is not decided on the merits, but rather, decided in a ‘what will the Supremes say’ mode.

    Look at the recent fiasco called Alice.

    I place the blame for this fully on the Supreme Court.

  6. 2

    Well said. I think, personally, the CAFC could be a bit more proactive and point to statutes a lot more, and let the Supreme Court say “well, err, yes, but…” more clearly.

  7. 1

    You poke a very large hole into a major premise of the work, Prof. Hricik.

    Put simply, the piece simply does not address the lack of cohesion to law that disbanding the nature of the CAFC is meant to accomplish. While it ‘sounds good’ that law would percolate more efficiently, we would have to ignore actual history. And what is the real reason for this choice of ignoring history?

    What it would seemingly accomplish (other than yet another layer of cost, of time) is another shot at judicial activism in order to try to write into common law policies (and the hint to Lemley being apropos) that the legislative powers have not embraced.

    And I am not even getting to the point that this judge errantly makes as to patent law being conflating with other law. While elements of general law may be present in the various IP segments, this type of ‘whatever’ conflation put forth by this judge shows a critical LACK of appreciation of patent law that screams for the CAFC to stay in place.

    We should not accelerate into the pitfalls of the past. What we need to have happen is for the Supreme Court to take their fingers out of the nose of patent law.

    As I have posted in other places, I would have no problem if the Supreme Court kept their hands ONLY to those patent cases that have actual constitutional questions, and if they would recognize – and give full faith and credit to – the very reason why Congress set up the CAFC to begin with.

    Of course, as recently shown in the Prometheus case, the Court is not willing to give up its addiction to its implicit power to write law; it is not willing to let their judicial exceptions become dead letters – no matter what plain, simple, unambiguous (albeit very broad) words Congress may have actually explicitly used.

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