Chief Judge Rader: Improving Patent Litigation

Today, Chief Judge Rader delivered an important speech to a joint meeting of the Federal Circuit Bar Association and the Eastern District of Texas Bar Association. The focus was on the current and future state of patent litigation. His two word synopsis: Needs Improvement.

The Chief Judge identified what he sees as the primary, overarching problem with the US Court System: Its expense. Patent litigation is particularly expensive. Driving this is the high cost of discovery (even though fewer than 1 out of every 10,000 pages disclosed prior to trial actual result in a trial exhibit).

The Chief Judge expanded on his thoughts – listing six ways that patent litigation needs to be improved.

  1. Discovery: Controlling costs through the management and control of the discovery process. In particular, the Chief Judge pointed to blanket production orders that lead to wasteful production and review. As discussed below, the Federal Circuit Advisory Council has also released a new model order relating to e-discovery issues.
  2. Summary judgment. Increasing the use of summary judgment as a tool for the efficient resolution of disputes. As an alternative, summary judgment is also an efficient mechanism for narrowing disputes.
  3. Transfer motions and Joinder. Both the bench and bar should work to "find venues that best suit the convenience of parties" and have a more logical distribution of cases across the country – and especially to the jurisdictions that have self-identified as having expertise in patent law. We should also move away from the trend of having an excess of parties involved in the litigation.
  4. Early procedural and substantive valuation of cases. The court may want to have different procedures for billion-dollar cases as compared with thousand-dollar cases. (The UK has attempted to do this in its recent creation of a low-cost patent court designed for smaller disputes). Chief Judge Rader suggests that judges should proactively probe the parties to establish a value for the case based upon a legitimate damages model. That approach will hopefully have the beneficial effect of promoting better settlement discussions. (DDC Note: I typically begin my patent class with a discussion of remedies).
  5. Rules and Practice. Courts should implement a dependable set of pre-announced rules that apply to patent cases so that the parties can understand the nature of the litigation well in advance.
  6. Troll and Grasshopper Control. Chief Judge Rader's defines a problematic patent troll as someone simply seeking litigation-cost settlements, or, in other words, "any party that attempts to enforce a patent far beyond its actual value or contribution to the prior art." Chief Judge Rader also identifies problematic "Grasshoppers" who steal innovations and then "refuses to license even the strongest patent at even the most reasonable rates." The solution: Attorney Fees and Costs should be awarded in meritless cases. As the Chief Judge writes "I strongly advocate full-scale reversal of attorney fees and costs!"

Coordinated with his speech, Chief Judge Rader has worked with the Federal Circuit Advisory Council to develop a model order relating to discovery issues – with a goal of streamlining e-discovery, particularly email production, and to require litigants to focus on the proper purpose of discovery—"the gathering of material information—rather than on unlimited fishing expeditions." The core of the model rule is a cost-shifting associated with excessive production requests. General disclosures would not require e-mail disclosures unless specifically requested. And, e-mail disclosures would only be required for "specific issues" rather than general discovery associated with a product or business. The basis for the e-mail limitations comes from the FCAC's notion that:

Most discovery in patent litigation centers on what the patent states, how the accused products work, what the prior art discloses, and the proper calculation of damages. These topics are normally the most consequential in patent cases. Thus, far reaching e-discovery, such as mass email searches, is often tangential to adjudicating these issues.

The model rules are not being forced upon any court, but may well be persuasive. The potential for immediate cost shifting could certainly alter some practices.

Documents:

Notes: Members of the team who worked on the model order include Chief Judge Rader of the Court of Appeals for the Federal Circuit, Chief Judge James Ware of the Northern District of California, Judge Virginia Kendall of the Northern District of Illinois, Magistrate Judge Chad Everingham of the Eastern District of Texas, Tina Chappell of Intel, Richard "Chip" Lutton of Apple, Joseph Re of Knobbe Martens, Edward Reines of Weil Gotshal, Steve Susman of Susman Godfrey, and John Whealan of GWU Law School.

60 thoughts on “Chief Judge Rader: Improving Patent Litigation

  1. The costs of patent litigation do, indeed, create inefficiency. At least the America Invents Act, while not addressing this issue directly, may nevertheless prove helpful, at least insofar as it provides or limiting the number of defendants in patent infringement actions.

  2. What about the no company startups they cant afford anything and the behemoths wont miss a figurative nickle from there pockets. With indegent master inventors its cant ant afford to sue now or in the future its critical to have issuance with no vampires jumping with triple damages plus intrest and a 50 50 leveling of the companies business equity or income pools. get rid of obviousness claims there a total disincentive to create valuable invention

  3. This concept doesent sound to good. Valuable patents from brilliant indegent inventors would become discouraged from being filed because of unaffordability and length of litigation as they are now. The thing they need to do is determine what makes the cases drag for years with tons of technacalities and throw out all that red tape

  4. Remember there is no one saying we the people cant draft a bill and present it to congress.Although what may be nessary to avoid the corruption of the incumbants is to put it on the ballot in next years election for the voters to decide with both sides of the story equally herd on the ballot. Clearly representative government that are not inventors and have alterior intrests is not the answer for integritious government or progressive patent reform.

  5. “The solution: Attorney Fees and Costs should be awarded in meritless cases.” Depends on how the “meritless” standard is applied.

    I heard a presidential candidate speak at Sullivan&Cromwell this week. He suggested something more balanced – the loser pays the loser’s attorney fees/costs to the winner.

    Likely more fair and reasonable when there’s asymmetry between the parties (small co vs large co).

    Lowest fruit on the tree to improve litigation (by reducing litigation) would be to provide a more clear declaratory judgement safe harbor for licensing transactions. Now its “sue first, negotiate later” and hence broken.

  6. In kind, inventors ask that courts, Congress, and the President consider our suggestions. Thus far they have largely turned a deaf ear to us. Tinkering with patent law while gagging inventors is like a surgeon operating before examining the patient.

    link to truereform.piausa.org

  7. one thing thats going to really help would be predictable outcomes in standardized situations like correcting and soiidifying previous decisions where no new arguments are presented

  8. The way I see it, there is a world-wide effort to redress the balance between cunning patent owner legal teams and hard-working honest competitor businesses.

    The way I see it,… cunning patent owner… hard-working honest competitor…

    Nope no bias evident here (eye roll). Why don’t you just be more blatent and say you want to follow the Infringers’ Rights Handbook?

  9. England is a very patent-friendly jurisdiction if there is an invention, otherwise not. It all depends on the witness testimony.

  10. Rader could be a bit more creative.
    I think many cases would be short-circuited if the Plaintiff were required to submit a claim chart with the complaint. The plaintiffs that I have faced depend on their ability to hide the fact of non-infringement until after they have imposed major legal fees on the defendent. If they settle before they get caught, they win. The Courts need a mechanism to catch this behavior. Any plaintiff with a decent claim of infringement should have a claim chart prepared before they file suit, so there would be no additional burden on plaintiffs.
    Also, at least for smaller defendents, invalidity contentions should only be required after liability is established. Current practice requires expensive concurrent invalidity searches, contentions, etc., which in my experience are wasteful given the clear lack of infringement, but dictated by the parallel track established by local rules.

  11. “How about “vexatious” infringement?”

    A rose whether called “vexatious” or “willful” would still smell like trebled damages…

  12. It’s a small world. The way I see it, there is a world-wide effort to redress the balance between cunning patent owner legal teams and hard-working honest competitor businesses. The English courts, the German courts, and the EPO Boards of Appeal are all conscientiously doing their bit to re-set the system.

    Watch the German and English courts targetting their respective niche markets, with the Dutch doing what the Dutch do so well, getting into areas of business wherever their European neighbour jurisdictions are not so fast on their feet.

    I’m sure your parameter claim was pukka but, you know, the EPO is faced with anabsolute plague of outrageously stinky parameter claims. The plague has to be got under control somehow short of litigating them all in London.

  13. In DE in last 6-8 years it does appear the first instance court is finding more invalidity, but (so far) generally having this frequently reversed by the higher court.

    In England, the last few appeals decisions I have read that upheld a lower finding of invalidity were literally dripping with textual malice. To be fair, I haven’t actually looked for reasoned decisions upholding validity….

    In the EPO, I recall one chairperson during an appeal (and yes, in the chemical arena) who told us it was his personal mission to stamp out “parameters” patents by creating a large body of TBA decisions finding against them. He may have been grandstanding to the audience, as we were being observed by a class of 60 or so foreign students. But in any event our patent was not a case where the claim was lacking in structure or the entire post-characterizing portion described in terms of results to be achieved. It simply happened to have one part of the claim described by a JIS testing standard.

  14. Don’t know what more I can say, Pure, without knowing more about your particular case. Competition between jurisdictions, each vying for the right “line”, together with different methods of finding the facts, is enough in close cases to bring diversity of results, country by country. Even now, the different chemical boards at the EPO, while scrupulously adhering to the line set by the Enlarged Board of Appeal, are notorious for exhibiting different levels of friendliness to patentees. Hard cases make bad law. I guess yours was a case in which both sides had good reason to consider it their right to win. Perhaps advocacy skill, peculiar to each jurisdiction, was the tie-breaker.

    As to England and patent friendliness, I find it hard to detect any pendulum. There are so few reasoned decisions of the Court of Appeal in patent matters. Each one is a high value case, and a 50:50 case, so big conclusions on patent friendliness Y/N are drawn on the basis of a small data set. Germany has a reputation for patent friendliness. I think it is currently losing the top 20% of that reputation. I think it is getting harder to decide whether Germany or England is more patent friendly (or unfriendly).

  15. “”Grasshopper” might even evoke a pupil eager to learn (a positive emotional response).”

    You must be thinking of the old “Kung Fu” program, Lexicographer. Am I right?

  16. I don’t know of any litigation that is not “vexatious” – frivolous is frivolous, but “vexatious”? How about “vexatious” infringement?

  17. “Litigators handle patents written up to 20 years earlier. Prosecutors handle the cases that will litigate 20 years into the future. It gives these two groups of patent attorneys very different outlooks. Competent drafters draft according to the settled caselaw of today. Twenty years ago, it was hard to draft in the knowledge of the settled caselaw of today.” [and] “Or do you maintain that the trend in Europe is to ever more uncertainty of outcome?”

    Taking the last quoted above first, I only asked about the wildly contradictory results gotten (very recently) in view of your comments. And going to the first quoted part, will point out that the EPO proceedings and then the first-decided national court actions were sequential events, with the time period from EPO TBA decision to the last of the local court decisions being on the order of 5 years (Italy not having been selected as a venue!).

    So it is not in this case a situation of litigating a patent first judged by the EPO as valid some 20 years agone – rather, it’s essentially contemporaneous application in court of current EPC.

    But I do not know myself whether the broader trend in Europe is heading toward more or less uncertainty. I will say that, despite what my UK colleagues have been promising me for 10+ years, England seems to my view to continue becoming more (not less, as they aver) generally hostile to patent rights.

    “Is it the same in the USA, that judges think they do law better than any mere Patent Office.”
    Wasn’t this one was a “given” in your premise? We already know that in the US courts some are more willing than others to give actual weight to the presumption of validity.

  18. I don’t come around too often, but I don’t think that’s a fair assessment of Max’s usual contributions here…

  19. Nice mail Pure. Many thanks.

    Litigators handle patents written up to 20 years earlier. Prosecutors handle the cases that will litigate 20 years into the future. It gives these two groups of patent attorneys very different outlooks. Competent drafters draft according to the settled caselaw of today. Twenty years ago, it was hard to draft in the knowledge of the settled caselaw of today.

    Trawl through my postings and you will find me reporting that just now, after a 30 year hold-out, Germany has come around to the EPO view of novelty. From where I sit, it is harder and harder for the judges in any one EPC country to maintain that their view of substantive law of validity of European patents should prevail over that of the EPO. But I grant you, there are plenty of tough cases that have been litigated over the last 30 years, where results vary, from country to country.

    The EPO well knows that if it revokes, that is the end for the patent owner whereas, if it upholds, those seeking to invalidate the patent can have another go, in national courts. It inclines the EPO, in less than 100% clear situations, to uphold rather than revoke.

    The English court would anyway have it that opposition at the EPO, without discovery or cross-examination, can only be a coarse filter. With those additional tools of rigorous fact-finding a claim that survives inquisition at the EPO will go down in the English court and rightly so. Take the patent on the Palmaz stent as an example. This view carries some influence at the EPO.

    Is it the same in the USA, that judges think they do law better than any mere Patent Office, so that they are not likely to take their marching orders from a mere Patent Office? Well, it is like that in Europe. So, it is expecting rather a lot for national judges to bend their knees to the EPO view of things. But, increasingly, they do.

    Or do you maintain that the trend in Europe is to ever more uncertainty of outcome?

  20. Responding to something MaxDrei said above (“…EPO does validity but NOT infringement. Confirm it to me will you please, that you are not here conflating (nice word that) pure clean EPO law on validity of patents with the murky and as yet not fully harmonised European law of patent infringement (in 40 different national jurisdictions of EPC-land).”)

    Hmmmm….

    Given this comment, which appears to imply that although infringement law is unsettled, the law on validity is (at least more) settled in the EPC members, would one have expected the following?

    A certain EPO patent is (i) granted, is opposed, survives Opposition Division without amendment, and then survives the TBA also unamended. So, according to the EPO/EPC, this patent is as about as valid as one can be.

    Now let’s litigate in EPC-land. The patent is (ii) valid in two neighboring states, despite the infringer’s arguments to the contrary.

    However, the same patent is (iii) novel but non-inventive in a third neighboring state, despite this ruling coming with full knowledge of the EPO proceedings and the first 2 states’ decisions of validity.

    Meanwhile, the two decisions in (ii) are appealed by the infringer, and validity is upheld in both appeals.

    Following these decisions on appeal, the same patent is found (iv) inventive but non-novel (yes, you read that aright) in yet a 4th state.

    Now swinging over to some later litigated states, and (v) the patent is invalid in a 5th state, but (vi) valid in a 6th, which 6th state had largely adopted its laws from the 5th.

    Forgive me if I’ve incorrectly presumed you meant to imply validity was well settled in EPC-land, but that is what your statements quoted above seemed to indicate.

    And “it just ain’t so”.

  21. Hmmm, “Troll” and “grasshoppers”

    These labels certainly do not evoke the same emotional response.

    “Grasshopper” might even evoke a pupil eager to learn (a positive emotional response).

    Even substituting the more onerous “locust” still does not bring the emotional impact of the two terms on par.

    A more slanderous term is required (which still “politely” avoids the slander and libel intonations – let’s not forget who coined the term “Troll” and the philospohical – and legal – reasons why a difffernt term had to be coined).

  22. >>Immediate summary judgement and crippling fines >>for anyone attempting to enforce a patent that >>should never have been issued.

    Now that would be against SCOTUS precedent. Chevron deference to agency decisions. The real problem is the USPTO.

    Move the beast to a place where engineers can live well off the pay they get at the USPTO.

    And encourage graduate classes and people to stay for a career.

  23. GRASSHOPPERS – Defendants and their counsel who avoid the real issues in a patent litigation (validity and infringement) and instead concentrate on false disparaging commentary about opposing counsel and inventors. Grasshoppers label every Plaintiff a troll, regardless of circumstances. Grasshoppers needlessly run up litigation costs with excessive discovery to drive legitimate patent holders out of the Courts. Grasshoppers drain the monetary value out of system, making patent enforcement a no-win scenario. We applaud Judge Rader for calling out these scourge and giving them a name GRASSHOPPERS before these locust can eat all of the crops.

  24. Am I saying there is NO settled law? Actually, Not, I think not.

    If there was agreement the litigants would settle, you aver. In general, I agree. But how about Big Corp trying to choke upstart into bankruptcy, or troll trying to extort out of Big Corp? How long before they settle?

    Certainly, each side, briefed by its own legal team, has different expectations. The greater the uncertainty of the law, the wider the difference in expectations. 95%+ of patent cases in England settle before trial, within a year of initiating proceedings. Only about a third of cases go to appeal. Is that your “no settled law”?

  25. As follow up anon to my comment about “pulling the summary judgment trigger too fast” is the fact that the admonition that all factual inferences are to be made in favor of the non-moving party on a motion for summary judgment is too much honored in the breach rather than the observance. This phenomena appears to be driven by the Supreme Court’s decision in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) which is often cited by the Federal Circuit in rebutting inferences urged by the non-moving party. See Madey, 307 F.3d at 1363, citing Amgen, Inc. v. Chugai Pharm. Co., 927 F.2d 1200, 1206-7 (Fed. Cir. 1991) (alleged inferences were mere speculation and thus not supportable). In fact, the Federal Circuit’s particular failure to heed this admonition may have led to the very complaint made by Newman/Rader in Classen about the insufficiency of the factual record.

    That district court’s may “pull the trigger too fast” on summary judgment also doesn’t support the Chief Judge’s implication that those courts need to “pull it” more. That district courts do pull the “trigger” this fast is very likely due to the pressure on district court judges to move their case volume along, especially as it continues it grow. Let’s face it, district court judges are human, and the temptation to move at least some of that case volume “mountain” along (especially in patent infringement suits which many technologically-challenged district court judges find daunting enough to begin with) through quick grants of summary judgment motions is very real.

  26. Sort of like trying to put it together before reading the Instructions. LOLOLOLOL
    “OR” The instructions are in Japanese or some other language.
    “OR” The instructions you received were unintelligible.

  27. I wonder how this kind of claim would do in litigation–I’m thinking about claims to a method of treatment but am caught between Bilski and multiple actor/lack of joint infringement considerations. What about a “system” claim for a method of treatment, to follow the lead of Centillion v Qwest–so “a system for obtaining treatment for a disease or disorder, comprising a means for obtaining a diagnosis (i.e., a visit to a doctor), a means for treating the disease (i.e., the specific therapy), wherein treatment is obtained” or something along those lines. Then the “system ” is put in operation by the patient, as in Centillion. On the other hand, it’s probably too much of a stretch to try to fit a method into a system format and might be seen as gaming–I think Rader has had sharp words for litigants he sees as doing this. Any (non-flaming) thoughts?

  28. anon, you make two points.

    As to the first, I agree with you, that it is a puzzle. Counter-intuitive. But see Paul Cole above. These days, there is nothing left to decide, on substantive law, at the EPO

    As to your second, the EPO does validity but NOT infringement. Confirm it to me will you please, that you are not here conflating (nice word that) pure clean EPO law on validity of patents with the murky and as yet not fully harmonised European law of patent infringement (in 40 different national jurisdictions of EPC-land).

  29. So, what you are saying, is that there is NO settled law. Any court can come up with any law regardless of what has come before it.

    Litigation arises because each party has different opinions as to how the result will come out. If tere was agreement, that would settle on what the expected outcome would be. As you describe the situation, since there is no settled expectations, each side can have varying opinions on the law.

  30. +1 to EG
    pulls the summary judgment trigger too fast, leaving a very sparse factual record for review on appeal

    “So be it” is not an appropriate response to a suggested answer that makes things worse.

    Also, to EG’s comment below, add to that once-in-process mode of that hope of winning overshadowing any sense of “water under the bridge” or sunk costs. Would a “loser-pays” make this aspect more complicated, prompting an even tougher never-give-up attitude?

  31. MaxDrei,

    Please help me – “only so clean and simple because 1) 1000+ DG3 decisions per year, for 30 years now, brings with it a “survival of the fittest” weeding process and 2) no court (such as the CJEU) sits atop the 24 Technical Boards of Appeal of the EPO and tells them how to run their shop.

    I would think that the two reasons you offer would actually work in the opposite direction of clean and simple.

    This runs along the same tone of a pair of comments on another thread where you advertised a benefit and then had to retract that statement when someone asked you for an answer to that “clean and simple” system and you begged off giving an answer because it was too difficult with all of the various courts.

    I see no difference.

  32. One big “plus” I found in the Chief Judge’s speech was point 4 (early procedural and substantive valuation of cases). Knowing what the case is really worth and what potential “remedies” are realistically/legally available is crucial. Knowing that information early can help not only the litigants, but also the district court in deciding whether the case is really worth going to trial one, and that perhaps early settlement (perhaps gently “pushed” by an informed district court judge) would be in everyone’s interest. I wouldn’t be surprised is too often the litigants get caught up in the “fever” of the lawsuit, and forget to consider what the case is really worth.

  33. The Chief Judge’s emphasis on point 2 (increased use of summary judgment) is worrisome as what I’ve found from reading many Federal Circuit decisions is that the district court quite often pulls the summary judgment trigger too fast, leaving a very sparse factual record for review on appeal. In fact, our Chief Judge should be reminded that this very problem happened in the recent Classen remand decision that he participated in where he and Judge Newman could only resolve the 101 issue but not the other 102, 103, and 112 issues. Both he and Judge Newman lamented that they couldn’t resolve the merits of the case (i.e., the 102, 103, and 112 issues) because key components of the factual record were missing on those issues. (And what happened in the the Classen case is not an isolated instance of this problem.) That would give me pause to push increased use of summary judgment by the district courts as that causes the another problem that former Chief Judge Michel railed about, namely “piecemeal litigation.”

  34. Paul, the English courts had a powerful motive to reform their procedures, that otherwise much of the business would decamp to Duesseldorf and there would be little left for the English patent litigation community to occupy themselves with. I see no such powerful incentive biting on the patent courts of the USA, so I expect little in the way of reform along the lines you suggest.

    Unless that is the CAFC gets its act together.

    Of course the corpus of EPO law is only so clean and simple because 1) 1000+ DG3 decisions per year, for 30 years now, brings with it a “survival of the fittest” weeding process and 2) no court (such as the CJEU) sits atop the 24 Technical Boards of Appeal of the EPO and tells them how to run their shop.

  35. > they need to apply the law without a pro-patent or patent protectionist stance being taken.

    Considering patents occationally are found to be not valid or not infringed, I cannot see any pro-patent or patent protectionist stance being taken. Do you?

    > How is a German court going to address infringement that allegedly takes place in the US?

    Companies are orten selling their goods over the whole world. Attacking their European market with 400 million potential customers, vs. 300 million US customers can be appealing. And with the financial meltdown many formerly well heeled US customers are now tragically seeing their net worth under water. Europe is also in trouble, so 50 million up and coming Koreans could very well be the most important market for some.

    > Judicial systems are competing?

    Of course. Patent war is business war, the US is not the only battlefield; non-western markets are quietly rising to become very important.

  36. Better and more consistent jurisprudence would help.

    It is a strange paradox that the EPO which operates a hybrid common law/civil law legal regime and in which prior decisions are persuasive rather than binding has evolved a body of law which has settled comparatively rapidly and which works. I cannot remember when I last read a decision on inventive step in a current issue of OJ EPO. In the US where precedent allegedly binds, basic principles are fundamentally reconsidered on a routine basis.

    A better procedural code would be helpful. As an Englishman it is my view that the Federal Code of Civil Procedure lays down a system of rules which is very nearly as good as civil procedure in Scotland. One example: how about detailed pleadings which accurately define the fact issues between the parties? Provision for obtaining further and better particulars if the pleadings are avoidably incomplete or obscure. For example, details in the prior art of the passages relied on and the claims to which they are applied. You could then, just like we do, confine discovery to thr pleaded issues in dispute. Shed-loads of money could thereby be saved.

    And why not cancel automatic stipulated discovery and have a case management hearing where the parties explain to the judge the issues on which they are going to need discovered documents, the narure and extent of the discovery needed and the rteasons why discovery is necessary.

    Of course, only a Transatlantic modest proposal.

  37. I agree with him in his two words “needs improvement”. Indeed, as he notes, the appelate judges are in the mess with the rest of the courts he’s talking about. Specifically I would note that they need to apply the law without a pro-patent or patent protectionist stance being taken.

  38. “1. Shakespeare
    2. Polio vaccine
    3. Pennicillin
    4. The wheel and axel”

    Got anything for us in the last 50 years?

    Altruism only goes so far. As for Shakepeare, I’m sure he got paid.

  39. The bifurcation of litigation into high- and low-value, I don’t know. Where would the line be drawn? Last I checked, there weren’t many “thousand-dollar” patent litigation cases on the docket. And would claim construction from such a proceeding be binding in subsequent litigation? Lots of problems, with unclear benefits.

    The highest dollar cases I’ve been a part of have been the simplest.

  40. “1. Stop issuing absurd patents.
    2. Immediate summary judgement and crippling fines for anyone attempting to enforce a patent that should never have been issued.
    3. No more patents on business methods or software. NONE.
    4. Patents should never be assumed valid.

    Of course, the best solution is to completely eliminate patents and copyrights. They do nothing but harm to the country. Before you compain that “but no one will create without patents and copyrights” you need to explain the existence of:

    1. Shakespeare
    2. Polio vaccine
    3. Pennicillin
    4. The wheel and axel”

    Well until you got to the part about completely eliminating patents for valuable technical contributions to the Useful Arts I was prepared to ask for your hand.

    Also, after I had determined that you were close to, but not quite, marriage material, I took a gander at your website and noticed this quote:

    ““Advising clients requires knowledge, skill and good judgment,” Jones says. “A clear understanding of the policy tensions within a legal regime is essential to developing the good judgment necessary to help guide a client’s actions.””

    Surely you must note that there are policy tensions in retiring the entire patent system along with all the technical contributions and in advancing the useful arts right?

  41. 1. Stop issuing absurd patents.
    2. Immediate summary judgement and crippling fines for anyone attempting to enforce a patent that should never have been issued.
    3. No more patents on business methods or software. NONE.
    4. Patents should never be assumed valid.

    Of course, the best solution is to completely eliminate patents and copyrights. They do nothing but harm to the country. Before you compain that “but no one will create without patents and copyrights” you need to explain the existence of:

    1. Shakespeare
    2. Polio vaccine
    3. Pennicillin
    4. The wheel and axel

  42. “I would ask you to remember too that in the long run our US judicial system is really competing with the world.”

    Translation: US patent litigation needs to remain attractive to the corporations and banks who rule our universe or they might take their football to another country, and that would make Ronald Reagan cry.

  43. “As the Chief Judge writes “I strongly advocate full-scale reversal of attorney fees and costs!” ”

    I like his plan he lays out.

    “In colloquial terms, the court may adjust timing and procedures of the case to make sure a billion-dollar case gets a “billion dollar’s worth” of process—adequate time and witnesses and confidential information protections and more—and a thousand-dollar case gets . . . well, less.”

    Is that even legal? Doesn’t everyone deserve an equal chance at justice?

    Just asking because I’m curious about that.

    Those things said…

    I would note two other things though. In his first little section he note responses from various actors over the last decade to IP litigation. But he leaves one segment out. The public. Maybe a response he would hear from them would have been “SHAKEDOWN RACKET”.

    I would also note that I agree with him in his two words “needs improvement”. Indeed, as he notes, the appelate judges are in the mess with the rest of the courts he’s talking about. Specifically I would note that they need to apply the law without a pro-patent or patent protectionist stance being taken.

    And a few more quotes are funny.

    “With the market prophesying the importance of our work,”

    Lulz, or the end of it, considering the reluctance you show towards working things out reasonably Mr. Chief Judge.

    “Our courts are in danger already of becoming an intolerably expensive way to protect innovation or prove freedom to operate.”

    Well, at least he sees the writing on the wall.

    “:when you are ordering drinks at a bar, you order a little more wisely when you know you are paying the tab!”

    Actually not true, though it might hold true for Rader on what is his supar meager salary of 200 grand a year.

    “If the US system requires a litigant to “feed the goose” ten ounces of gold only to get a golden egg of five ounces in return, obviously geese from other counties that don’t require such an investment, such as Germany or Japan or China, become more appealing.”

    W tf Rader? How is a German court going to address infringement that allegedly takes place in the US?

    “I would ask you to remember too that in the long run our US judicial system is really competing with the world.”

    Judicial systems are competing?

    Rader, brosky, w t f bro?

  44. 1. Agreed. Difficult to implement.
    2. Summary judgment is wide-spread, but the burden to survive a motion for summary judgment is so low. Only the worst of the worst fail here. Then there’s also the tendency to reverse.
    3. Sort of fixed in the AIA. Whether this gives rise to more MDL remains to be seen.
    4. This would be helpful, but I’m sure there would be lots of gamesmanship.
    5. I think this goes along with the finding patent-litigation-experienced jurisdictions.
    6. Entirely agree on awarding costs, but neither the Fed. Cir. nor district courts are too keen on this and it takes a long time to get to the point of receiving fees.

  45. Rader could start by improving patent jurisprudence to encourage predictability of outcome, which is the single biggest “cost-saver” there is, as it could possibly preclude the very filing of suit, or at the very least encourage early settlement. Also, there wouldn’t be so many appeals taken from the district level, as those cases would be better-decided.

    For those abusers who just want to bury the opposition with costs even in the face of a losing case, his ideas on discovery have some merit, but maybe they should be combined with enhanced penalties for frivolous and vexatious litigation.

    The bifurcation of litigation into high- and low-value, I don’t know. Where would the line be drawn? Last I checked, there weren’t many “thousand-dollar” patent litigation cases on the docket. And would claim construction from such a proceeding be binding in subsequent litigation? Lots of problems, with unclear benefits.

    The single most urgent need, and highest value strategy, and probably lowest cost strategy, is better jurisprudence. The court could do it TODAY, as part of its ordinary course of business. Implementation would cost nothing except for some time. I have no sympathy for the current CAFC in this regard–although they have some unfortunate USSC rulings to which to adhere, they have largely created their own mess, and it is they who should be responsible for fixing it.

    Of course, that would require time, coordination, communication, cognition, and a coherent strategy and approach by the court–and that’s an unacceptably big commitment for our current crop of civil servants, notwithstanding the systems in which they must function.

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