Hah, I knew who the author was going to be before I even clicked the article. (Hi, binarybits!) Allow me to rebut some points:
1. If anything is to be blamed for the "explosion of patent litigation in recent years" (for certain values of "recent"), it's the following:
a) the recent AIA "joinder" rules regarding how many defendants you can sue together, forcing trolls to file multiple suits where they would have filed one giant suit; and
b) Genentech v Medimmune [1], which made it possible for potential licensees to file a pre-emptive "Declaratory Judgement" lawsuit if someone even approached them to discuss a license, which forced licensors to take sue-first-ask-questions-later attitude to avoid ending up in a defensive position.
2. As this patentlyo post [2] points out, the CAFC is not a single-minded group of judges. Most of the decisions that were reverted by the Supreme Court had CAFC judges with dissenting opinions. (As many as 5, as in the Limelight case.) And if you need data as opposed to examples, well, there's a study [3] finding that this court had the "second highest percentage of dissents amongst the circuits studied".
Further, since Bilski, the SC has agreed with the CAFC 7 out of 13 times [2], which is not too bad. But there's more: the TFA uses this link [4] to show that the Supreme Court reversed the CAFC 10 times. Somehow TFA does not mention that there were a total of 40 cases since the CAFC was formed, which indicates that the Supreme Court affirmed the Federal Circuit decision 75% of the time!
3. The Supreme Court is not infallible, especially when it comes to patents, because I'm guessing it is a relatively esoteric part of law. This patentlyo post [5] points out one potential error in the Limelight case. The Prometheus decision was another example where they actually conflated patent eligibility with patentability [6, 7, 8]. This is such a basic mistake that even a non-lawyers like us can understand it.
4. Recent empirical evidence indicates that the Federal Circuit is no more "patent friendly" than district courts [9]. In fact, if you look at the chart 2, the rate of invalidating patents has been increasing steadily since 2000. (To be fair, they theorize it's because of Supreme Court pressure.) But if you look at chart 4, the CAFC has consistently been affirming the district courts findings of invalidity the vast majority of the time. So no only does the Supreme Court agree with the CAFC more often than not, so do the district courts.
Comments
Hah, I knew who the author was going to be before I even clicked the article. (Hi, binarybits!) Allow me to rebut some points:
1. If anything is to be blamed for the "explosion of patent litigation in recent years" (for certain values of "recent"), it's the following:
a) the recent AIA "joinder" rules regarding how many defendants you can sue together, forcing trolls to file multiple suits where they would have filed one giant suit; and
b) Genentech v Medimmune [1], which made it possible for potential licensees to file a pre-emptive "Declaratory Judgement" lawsuit if someone even approached them to discuss a license, which forced licensors to take sue-first-ask-questions-later attitude to avoid ending up in a defensive position.
2. As this patentlyo post [2] points out, the CAFC is not a single-minded group of judges. Most of the decisions that were reverted by the Supreme Court had CAFC judges with dissenting opinions. (As many as 5, as in the Limelight case.) And if you need data as opposed to examples, well, there's a study [3] finding that this court had the "second highest percentage of dissents amongst the circuits studied".
Further, since Bilski, the SC has agreed with the CAFC 7 out of 13 times [2], which is not too bad. But there's more: the TFA uses this link [4] to show that the Supreme Court reversed the CAFC 10 times. Somehow TFA does not mention that there were a total of 40 cases since the CAFC was formed, which indicates that the Supreme Court affirmed the Federal Circuit decision 75% of the time!
3. The Supreme Court is not infallible, especially when it comes to patents, because I'm guessing it is a relatively esoteric part of law. This patentlyo post [5] points out one potential error in the Limelight case. The Prometheus decision was another example where they actually conflated patent eligibility with patentability [6, 7, 8]. This is such a basic mistake that even a non-lawyers like us can understand it.
4. Recent empirical evidence indicates that the Federal Circuit is no more "patent friendly" than district courts [9]. In fact, if you look at the chart 2, the rate of invalidating patents has been increasing steadily since 2000. (To be fair, they theorize it's because of Supreme Court pressure.) But if you look at chart 4, the CAFC has consistently been affirming the district courts findings of invalidity the vast majority of the time. So no only does the Supreme Court agree with the CAFC more often than not, so do the district courts.
1. http://en.wikipedia.org/wiki/MedImmune,_Inc._v._Genentech,_I....
2. http://patentlyo.com/patent/2014/06/federal-circuit-really.h...
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1598419
4. http://writtendescription.blogspot.com/p/patents-scotus.html
5. http://patentlyo.com/patent/2014/06/judicial-hypothetical-li...
6. http://inventivestep.net/2012/03/20/supreme-court-continues-...
7. http://www.boulwarevaloir.com/article-Mayo-Promethus-pub.pdf
8. http://www.ipwatchdog.com/2014/03/31/missed-opportunities-fo...
9. http://www.morganlewis.com/pubs/Smyth_USPatentInvalidity_Sep...