June 30, 2014 is Judge Rader’s final day on the bench. Judge Rader has – and I suspect will remain – a lightning rod for both criticism and support. What I love is that his continued focus is on the law and what we can do to improve its function. Judge Rader forwarded the following letter to his Federal Circuit colleagues and gave me permission to distribute its contents to Patently-O readers.
My Dear Colleagues (for the last time I presume to call you “colleagues”),
Over three and a half decades ago, I sat across from Howard Markey, Chief Judge of the Court of Customs and Patent Appeals, in my Senate Judiciary Committee office. In a meeting I recall with stunning clarity, he showed me the vision of a court dedicated to the uniformity, consistency, and strength of vital areas of commercial law to be entrusted to the new Federal Circuit. Inspired by his dreams, I set out to work vigorously for the enactment of the Federal Courts Improvement Act of 1981. To this day, I regret that I allowed judges from the Ninth Circuit to dissuade me from offering an amendment to include copyright and trademark cases within the jurisdiction of the Federal Circuit. To this day, however, I rejoice that I obeyed Chief Judge Markey’s request that I hear cases every month without a break as a circuit judge.
Less than a decade after that first meeting with Chief Judge Markey, after two years as a trial judge, I took a seat on the court that I had helped to create. You can imagine my feelings of awe as I took a seat on the bench beside the legends, Howard Markey, Giles Rich, and Daniel Friedman. As the years passed, I delighted to recount both in my own private deliberations and in public events the great wisdom I absorbed from those masters of the judicial office.
Time flies on wings of lightning. Before you can comprehend, many of you will be delighted to recount both in your own private deliberations and in public events the great wisdom you absorbed at the feet of the legends, Polly Newman, Alan Lourie, and Bill Bryson. Yet another page will turn and some of our current law clerks and interns will occupy judge’s chairs and recount both in their own private deliberations and in public events the great wisdom of the legends, Evan Wallach, Ray Chen, and Todd Hughes.
With the passing of each judicial generation, I hope that the Federal Circuit perpetually renews Markey’ s vision of a judicial institution unlike any other in the world. To no other court does a nation, let alone the most powerful economic nation in the world, entrust legal decisions that shape world trade, innovation, and core commercial policies. Yet I can vigorously attest that this vast responsibility could not rest in more secure and capable hands. At some distant point in the future, I hope to sit again across from Howard Markey; I will assure him that his vision has been realized. . . and sustained!
Now in a few minutes, I will start my car and ascend the ramp to H Street for the last time. At the top of the ramp, I will step out of my car for a moment to embrace my law clerks. With that embrace, I wish to symbolically embrace and commend the greatest bar in the world. No practicing lawyers anywhere in the world contribute more to the competent jurisprudence of their court than the lawyers who make up the Federal Circuit bar. Just as legendary judges pass perpetually the torch to new judges, so too Don Dunner, Bill Lee, Seth Waxman and others have set standards of excellence that will be matched by newer attorneys who will become themselves legends of reason and persuasion.
Then, there at the top of the ramp, I will slap a “high five” to the security officers on duty at the gate. With that salute, I wish to symbolically honor and recognize the entire staff of the Federal Circuit — the Administrative Services personnel under Dale Bosley, the Technical officers under Mona Harrington, the Library staff under Pat McDermott, the General Counsels under Doug Steere, the Clerk’s office and the entire staff led so marvelously by Circuit Executive Admiral Dan O’Toole. No court staff anywhere can exceed these incomparable professionals who, as much as any judge, have contributed to the superb reputation that the Federal Circuit will carry into coming decades.
With eyes misted over with magnificent memories, I will then turn my gaze to the horizon. I will hope to find new ways to contribute to the uniformity, efficiency, and predictability of the law. No matter what opportunities I receive in my next legal “life,” I know that no honor can ever exceed the opportunity that I had to contribute to the United States Court of Appeals for the Federal Circuit. Thank you, brothers and sisters, for the vast honor of sitting at your side. God save this honorable court!
Your friend for life, rrr
[…] Finally, at the end of June, patent practitioners and judges across the country, including the ND Cal, bid farewell to the appellate oversight of Judge Rader, who stepped down from the Federal Circuit bench. […]
As a young patent attorney in the ’60’s I believed in the patent system. Now, not so much. Justice Douglas hated patents but venerated copyrights. (Perhaps, because he published books and received royalties.)
Without Judge Rader, who will define the term, “reasonable certainty,” in a manner reasonably favorable to the inventor? I am not aware of a Markman hearing where the defendant did not challenge every operable term in a claim. Is “reasonable uncertainty,” the new hallmark of an invalid claim?
The current system is truly a mess and I have great reservation in recommending that a client file a patent application. Riddle me this, is a box with a handle indefinite?
Rick, I can only hope the Supreme Court addresses this issue in the upcoming case on claim construction and findings of fact. They said in Markman that the jury should not decide disputes about claim construction, but should still decide infringement. But is this the same when the patent is challenged for invalidity? Can an accused infringer introduce evidence of his paid (unbiased?) expert to opine that the claim terms are not reasonably certain to one of ordinary skill, and not have the jury decide that issue which so depends on credibility?
As you know from the jury trials you have conducted, the testimony of experts on paper may appear to be close. But in court, when they testify, the truth becomes apparent. The insincere expert comes across like a used car salesman selling a known lemon. Juries can spot this. And when the validity of the patent hangs in the balance, and not just the issue of infringement, we should let the jury decide.
I believe the Supreme Court in Nautilus at least recognized that we draft claims to those skilled in the art.
The Supreme Court has an ultra low opinion of scriviners – no matter for whom the claims are drafted.
“Riddle me this, is a box with a handle indefinite?”
Only if the person filing the claim on such is paranoid.
All inventors are paranoid. So should be the rest of our society.
Well that’s bad news then since all of their boxes with handles will be indefinite.
That open letter was smarmy and tactless. If Rader was like that as a chief judge, he may not have had many allies on the court.
You think his writing is smarmy and tactless?
You should check your own – you preach about finger wagging and yet you wag your finger.
You preach about holding and dicta, yet blindly (and badly) obfuscate the two.
You preach about statutory construction and the importance of the statutory classes, then spin pure B$ that aligns with your agenda, but that is clearly not supported by ANY reasonable view of the statutory text, the congressional record, Frederico’s personal commentaries, the Cornell Law website notes – nothing but badly garbled Ned-IMHO-law twistings.
You preach about not wanting to be badgered, but refuse to take seriously any comments that detract from your Ned-IMHO-views and proceed to carpet bomb that same faulty position dozens of times over and over and over again.
The pile of glass shards from where you cast your stones cuts you to ribbons, and you seem blithely unaware.
anon, the fact that you and I disagree on some issues does not mean that you are right and I am wrong. I support my arguments with case law. At times, you do also.
However, when we disagree on a particular proposition or what a case holds, you never really engage, either with me or with anybody else. Your sum total of argument is to simply say the people you disagree with are wrong.
“does not mean that you are right and I am wrong.”
No, but his having OCPD does.
The med-control line is a FAIL.
Judge Rader should have read the code of conduct a little more carefully. There are only a few canons about a page long…
Code of Conduct for United States Judges
Canon 2(B): A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.
Commentary 2B: … A judge should avoid lending the prestige of judicial office to advance the private interests of the judge or others. For example, a judge should not use the judge’s judicial position or title to gain advantage in litigation involving a friend or a member of the judge’s family. In contracts for publication of a judge’s writings, a judge should retain control over the advertising to avoid exploitation of the judge’s office. …
J, are your comments here pertinent to this letter?
Judge Rader’s shout-out to his pals Dunner, Lee, and Waxman suggests that he still doesn’t understand how he got into this situation in the first place. Either that or he is intentionally giving a rhetorical finger to his critics.
Just how much is an endorsement from the former Chief Judge worth to an appellate practice group?
I think you are right Dan. Not good. That shout out to Dunner was probably worth millions to Finnegan.
The rhetorical finger would be to call out the same gentleman as earlier lauded 🙂
true…
That would have been an even bigger finger for sure.
“Judge Rader’s shout-out to his pals Dunner, Lee, and Waxman suggests that he still doesn’t understand how he got into this situation in the first place. Either that or he is intentionally giving a rhetorical finger to his critics.”
I thought about that myself, but I figured if he’s getting pushed out then so be it.
Yeah, the code of conduct probably doesn’t even apply on your last day, right?
Where is Dave “Ethics” Hricik, by the way? We haven’t heard from him on this topic.
I sort of have a personal conflict, one, and two don’t know all the facts.
It seems to me that the relevant facts are right up there in the “open letter,” but I certainly understand that you really can’t/shouldn’t talk about it.
From what I can tell, Judge Rader would make a truly wonderful friend. I wonder, however, whether the qualities that make him a good friend contribute to an apparent blind spot with regards to avoiding an appearance of impropriety. Given his gushing tribute to his friends, I can’t blame anyone who ever appeared before Judge Rader opposite one of these “legends” for wondering whether he or she ever received a fair shot. I’m certainly not saying that Judge Rader ever failed to be impartial, but his lack of judgment on this issue suggests to me that his resignation is a good thing for the court.
There may well be aspects of this that I’m not appreciating, so I’m truly interested to hear an opposing viewpoint on this issue.
“There may well be aspects of this that I’m not appreciating, so I’m truly interested to hear an opposing viewpoint on this issue.”
You’re not likely to get one save perhaps on the part about impartiality. I’ve had my doubts for some time now ever since I read some of the travesties of “reason” that are some of the higher profile cases he decided in years gone by. Though he certainly is not alone in prickling the hairs on my neck with regards to the fair shot.
Fact is also though that the patent bar is very much so cozy with the fed. circ. and I’m surprised that there isn’t more public outcry about that (in so far as this might just now be being uncovered or reported).
There are quite a few things in patent land that lends itself to the appearance of impropriety, it’s just that the whole field hasn’t been big enough to garner enough attention until not long ago. So it is hard for me to come down on the one instance while turning a blind eye to all the others.
Judge Rader should have read the code of conduct a little more carefully. There are only a few canons about a page long…
Not that I agree with what Rader did, however, let’s remember that certain “Canons” include the phrases “shall” or “must” and others contain the phrase “should.”
I have had to explain to Examiners, on many occasions, the difference as it applies to the MPEP. Should doesn’t mean shall.
While you make a solid point, Oh no, I would still find fault with the ‘transgression’ here – but barely nominal fault and certainly no harm from that fault.
Unlike the previous transgression, the context of the judge leaving office – verily on his actual way out – removes the concern that the judge will be acting in ANY untowards manner going forward.
Does it call into question whether he gave ‘fair shakes’ to all before him?
I say they nay – read the comment again – it is a platitude to recognized excellent performance and not to persons regardless of recognized excellent performance.
I would daresay that someone trying to make a mountain out of this molehill should be evaluated themselves for ulterior motives.
Most of those are very good points, anon. I’m not buying Oh no’s suggestion that a judge gets a free pass on those canons that use the word “should,” however.
Once again, I’m not suggesting that Judge Radar ever acted with any conscious bias. (We all have unconscious biases, of course.) I am saying, however, that repeated public endorsements of his friends while still on the bench, even if the second occasion was on his last day, suggests a surprising lack of judgment.
In the words of a great philosopher, “That’s all I have to say about that.”
I “get” what you are saying about “lack of judgment” but fully distinguish the last day actions.
I see more weight in your “give them the finger” notion.
Rader, in his last writing as judge, used the prestige of the office that helped private individuals. Incredibly unprofessional. Law firms are very competitive and want important clients… and what will this letter do but help some law firms above others? So, yes, this has implications going forward.
Is it as detrimental as writing the letter that led to his resignation? No. But it is hard to match that catastrophe.
J,
Mountain…
from molehill.
What’s your angle?
link to gigaom.com
This would figure. Obama wants to preserve patents for pharma and weaken all other patents.
Tarantula’s appointment illustrates this well. “I need someone to get those patents in line, but those pharma patents need to stay strong.” “Yes, Sir, I will do that. I have no qualms about holding all patents invalid except for the pharma patents, Sir. ” (Tarantula thinks to himself how easy it will be to kill off a system that he is completely ignorant of and never cared about before his lust for an appointment. How pesky, he thinks, it will be to have to learn something about science and innovation, but he thinks it doesn’t matter just hold everything invalid.)
Obama wants to preserve patents for pharma and weaken all other patents.
I know you have a very conservative slant (somewhat like Gene Quinn). However, remember who gave us Dudas and who gave us Kappos.
On the whole a charismatic and gutsy guy. Sad to see him leave so soon.
Love him or hate him, he was a cool guy to have a drink with. First Mormon I ever met that drank.
wow he drinks? Crazy.
My experience is that a lot of Mormons enjoy a taste of fire water when they are pretty sure that their Mormon friends aren’t going to make a surprise appearance.
They are human, after all.
He better watch out, he might get a smaller personal planet when he dies. His heavenly buddy is always watching.
Don Dunner? It’s too bad the old archives of patently-o aren’t searchable.
Give me a break. Rader comes off like a self-aggrandizing narcissist–and not just in this letter. It’s too bad the old archives of patently-o aren’t searchable.
Randall Rader, the hero of his own life. If he was only half as good as he thinks he is, we wouldn’t be in the mess we are currently in.
Oh…this is the best thing to happen since Paul Michel left the bench.
Unfortunately, one of my maxims is in play: “No matter how bad you think a situation is, IT CAN ALWAYS GET WORSE.”
Enter Taranto, and especially Sotomayor. It is mildly amusing to me that you people continue to play in this fetid cesspool.
I am absolutely serious.
Where do you play now? I agree with you that Taranto, and especially Sotomayor are really bad.
Rich and Rader long fought the judicial exceptions to patentable subject matter — I think on the basis they were non statutory.
There’s a right way to do that and a wrong way.
The right way is to acknowledge that without the judicial exceptions the 1952 patent act created an absurd free-for-all that represented a far more radical change to patent law than any Supreme Court or Federal Circuit case ever did.
The wrong way is to just stick your head and the sand and pretend that everything is cool because your friends are making a lot of money and, hey, just let lawyers be lawyers.
Rader chose the latter way. That’s his legacy.
“far more radical change to patent law than any Supreme Court or Federal Circuit case ever did”
You still don’t get it that Congress is the branch of the government that can be “that radical” no matter what the judiciary “feels.”**
** see the legal discussion – apart from fee-fees that I have already pointed out.
You still don’t get it that Congress is the branch of the government that can be “that radical” no matter what the judiciary “feels.”**
I totally get that.
But there is nothing in the Congressional or historical record that remotely suggests Congress was trying to be make the radical changes that you and Hricik and his disgraced boss think they made.
But keep hacking away. It’s what you do best.
nothing?
Not so and I have shown the Congressional record, Frederico’s commentary and the Cornell Law links to back me up.
You have shown nothing but ad hominem and your fee-fees.
Not so and I have shown the Congressional record, Frederico’s commentary and the Cornell Law links to back me up.
Complete and utter b.s.
You’re a joke.
The RQ/HD has decreed – clench tight those eyes and ignore history!
ignore history
Step up to the plate, Billy, and show everyone your evidence that Congress intended to allow applicants to protect mental processes.
Or continue pretending that the issue that keeps smacking you in your weeping baby face doesn’t exist.
Your choice.
Asked and answered Malcolm.
Pay attention.
(as to the real issues – not your smokescreens and dissemblings)
Asked and answered
No, that never happened except in your feeble mind.
Calling Professor Hricik! Your little sidekick is having another “ethical moment.” Can you please set him straight?
Your lack of paying attention does not make for an “ethical moment” for me.
You really don’t get this ethics stuff, do you Malcolm?
Not bs brosef.
Pseudologia fantastica
(sigh)
Your med -control efforts are a bust 6.
But there is nothing in the Congressional or historical record that remotely suggests Congress was trying to be make the radical changes that you and Hricik and his disgraced boss think they made.
If in doubt, check the statute. Does the statute limit patentable subject matter in the manner you think? No. As has been recognized thousands of times, the statute was expansively written. If Congress wanted to exclude certain subject matter (e.g., mental processes) they could have easily done so in 1952. They could have also easily done so in the latest patent reforms.
I get that you dislike a lot of patentable subject matter. However, your personal likes and dislikes bore the heck out of me. At least Ned will cite case law (oftentimes inaccurately, but he does try) and 6 is humorous as the board fool. You, on the other hand, are the guy sitting in the corner of the bar constantly mumbling to himself how the world is all wrong and everybody is out to get you. Your shtick may seem interesting for the uninitiated, but hearing the same diatribe over and over and over again, year after year after year, gets old really fast.
If I see a long post from you, I immediately skip over it as I know that it will add nothing new to the conversation.
Dead nuts accurate Oh no.
However, his playing the t001 can still yield some fun by pointing out just what a hypocrite he is.
It still is a game to see if he ever will venture forth (again) into the the land of substantive comments on the merits. The last few times that he has attempted to do so, he has scorched his widdle fingers badly.
That’s why he only pounds tables with “policy”/opinion and stays away from any discussion founded in actual law or fact. He is the poster child for how NOT to argue a legal position.
“But there is nothing in the Congressional or historical record that remotely suggests Congress was trying to be make the radical changes that you and Hricik and his disgraced boss think they made.”
You have to remember MM, anon has made up a fantastical story where there totally is. The story comes complete with evil incompetent judges out to get patents and exceed their authority. So to him, there totally is something in the record that indicates that. He will not let go of this Pseudologia fantastica sans confrontation irl. Apparently though he’d let it go if you confronted him irl.
Very odd 6 – and of course a complete misrepresentation.
Open your eyes son – this is all historical fact.
I would like to see citations rather than just assertions. Not like, “give them to me now!”, but whenever it is appropriate.
J,
The citations have been many and plentiful. See the Congressional record from the 1952 Act. See Frederico’s commentaries. See the Cornell Law website and their notes (especially on 35 USC 103).
Pay attention man, as I have provided abundant links in the past.
The citations have been many and plentiful.
No, the citations that prove that Congress intended to allow applicants t0 patent mental processes aren’t many and plentiful because they don’t exist.
See the Congressional record from the 1952 Act. See Frederico’s commentaries.
Just show us the cites that are directly on point? What exactly is the problem, Billy? If they don’t exist, then just admit it. Then put on your big boy pants and apologize for your sad charade.
Or continue behaving like a certifiable l00nytunes. Your choice.
“except to”
LOL – that’s intended to be a joke, right?
The ONLY thing you are willing to do is play your stale med-control line.
I get it – actually having a conversation on real points of law, using real facts (from this reality) just does not work out too well for you and your fee-fees, so you run away (as typical)>
“Except to…
Ahhh, that’s pretty funny if you think about it.
J, anon has enough citations etc. that he can argue support his view to make his fantastic story (Pseudologia fantastica really) not completely outside the realm of possibility. That’s what characterizes the pseudologia fantastica as a phenomena. The problem is, nobody, or practically nobody, irl and in positions of power really believe his fantastical story is how things went down and that his interpretations of the citations are correct. Not to mention that it is pretty clear to any everyday lawyer off the street that he’s gone too far into the fantastic after reading his “citations” etc. It seems likely though that given his preoccupation with ethics that in his mind it’s totally true (regardless of what others think and regardless of how many other perfectly intelligent people tell him otherwise).
link to en.wikipedia.org
zzzzzzzzzzzzzz
No matter what, 6 belieb system transcends all reality and therefore MUST be right.
/eye roll
He’s just trying to help you get a grip.
You do realize that you are always going to be on the losing end of this discussion, “anon”. Like, forever.
It seems likely that in the back of your tiny mind you and your fellow “soldiers” are hoping for some civil war after which self-interested patent fundies like you get put in charge of everything. The odds of that happening are precisely zero. Just letting you know. You’d be better off hoping for an asteroid to hit the earth so we can have a total re-start.
Mental processes will never be eligible for patent protection. Ever. Never were. Never will be.
You want to try to focus on the real issues Malcolm?
Try not to insert your Totally In The Mind stuff for which I take Les’s keys away from him.
Focus, man – focus.
“zzzzzzzzzzzzzz”
Always good to throw a little contempt for those who are trying to understand you in. I am right anon?
The contempt is for your little silly med-control games, under the guise of “Gee, I’m trying to understand you” (which no one buys given your professed belieb system).