Patently-O Bits and Bytes: Judge Lourie on the Federal Circuit

  • Federal Circuit Judge Lourie recently discussed the state of the court. Here are some points [LINK]:
    • 11.3 Months: Time from docketing to disposition of district court [patent] appeals in the past year.
    • 2.1 Months: Time from calendaring to disposition of the same cases.
      • Note: It is unclear from Judge Lourie’s speech if the times are averages or medians. The court has made great strides in keeping the average and median pendency quite low. There are however, a group of outliers with much longer pendency. The outliers are, for the most part, associated with a couple of particular Federal Circuit judges.
    • 50-mile rule: “On this issue of district court judges sitting with us, some recent patent bills have proposed to eliminate the current statutory requirement that judges on our court live within a 50-mile radius of the district. In my view, no persuasive reason has been given for that change. I believe it would be contrary to the best interest of the court and its functioning, and hence the law”
    • PTO Discussion: “No doubt an overcrowded examination system that places quotas on examiners plays a role in our less-than-perfect examination system.”
    • Pro Patent Court: “Since I have been on the court, over 18 years, not once have we [as a court] had a discussion as to what direction the law should take, whether we should be pro-patent or not. That is because we are not a policy-making body. We have just applied the law and precedent as best we could determine it to the cases that have come before us. In fact, we have been criticized for, in the view of some people, narrowing the doctrine of equivalents, emphasizing the need for a written description commensurate with the claims, and affirming summary judgments of non-infringement that in effect preclude juries from deciding these cases.”
    • Appellate Advice:
      • Make sure your case is final before filing the appeal
      • Cross appeals are only for the purpose of challenging the decision (not for arguing that the decision is correct)
      • Don’t allege that “every business fact is super-confidential. It makes it difficult for us to ask questions from the bench and write an opinion.”
    • Limit the issues: “Having more than three issues in a brief suggests to us that you don’t have a strong appeal.”

7 thoughts on “Patently-O Bits and Bytes: Judge Lourie on the Federal Circuit

  1. 7

    I also feel that the new format is difficult to read. The font is too small and the main content is pushed to the left side of the screen. I would suggest you move “recent comments”, “archives” and “terms of use” to some other places so the main content could expand a little more.

  2. 6

    Professor Crouch,

    I believe your synopsis of Judge Lourie’s speech may be incorrect. In the Appellate Advice section, you state that “The exclusive licensee does not have standing by itself (the patent owner must be joined).”

    I respectfully submit this is inaccurate statement of law. Exclusive licensees may have standing.

    Judge Lourie, in fact, stated “when an exclusive licensee files for infringement, make sure the patent owner is joined, so we won’t have to split hairs on whether all substantial rights have been transferred by the license entitling the licensee to sue alone.” This seems to be a good rule of practice but falls far short of a new rule of law for standing.

    May I suggest you revise the statement to read: “[Because] the exclusive licensee [may] not have standing by itself, the patent owner [should] be joined.”


  3. 5

    I disagree with the above comments about new format. I like it (and yes I am also older -in Mid 50s).

  4. 4

    Dear Mr. Boy,

    With all due respect, there are no fonts named “Ariel.”
    link to

    “Monotype’s Arial, designed in 1982, while different from Helvetica in some few details, has identical character widths, and is indistinguishable by most non-specialists.”
    (From: link to

  5. 3

    The font of this article is waaaay tooo small. I think a lot of us will give the blog the bun’s rush if this font stays.

    And I suggest going back to Ariel in addition to bumping the size up a couple notches.

    The comments font ain’t too bad. The Oct 02 font is fine.

  6. 2

    “That is because we are not a policy-making body.”

    No? Just a substantive rulemaking body? Seriously, what does Judge Lourie’s statement mean? The CAF…, er, Federal Circuit sets policy (e.g. create rules beyond what is printed in 35 U.S.C.) all the time, and I think it’s a fairly well-accepted view that patent law is one of the most “federal commonlaw” body of laws we have, based on its development in the courts. Does he simply mean that Congress gets the ultimate say?

  7. 1

    Dennis, this new format is hard to read with the limited space in this column. I suggest working the double column on the right into only one column. Maybe you could try to work in some of that content (e.g., search, subscribe, author), into the tabs on the top.

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