We will work to ensure the Federal Circuit—the court that hears all patent appeals—diligently applies the new filter on patentability.
Doesn't the Federal Circuit have something of a history on cases such as this, where they essentially say 'fuck it, we're not listening to the SCOTUS', and continue to rule as they please? What's to stop them from just doing business as usual in defiance of the Supreme Court?
Chief Justice Roberts will send Justices Kennedy and Ginsburg around to make an example of one of the Federal Circuit justices.
Kind of like how the Mob do business but will gavels instead of baseball bats.
"Ya know, that's a really nice bench ya got there. It'd be a pity if something were to happen to it..."
PS: I think the premise of the Supreme Court justices enforcing their judgments, Mafia enforcer-style, would make a great graphic novel. I can see Ginsburg going all Tommy DeVito on some Federal Circuit judge's ass and burying the body in the Rose Garden.
NOBODY expects a Supreme Court Review! Our chief weapon is surprise...surprise and fear...fear and surprise.... Our two weapons are fear and surprise...and an encyclopedic knowledge of the law.... Our three weapons are fear, surprise, and an encyclopedic knowledge of the law...and an almost fanatical devotion to the Constitution.... Our four...no... Amongst our weapons.... Amongst our weaponry...are such elements as fear, surprise.... I'll come in again.
What's to stop them from just doing business as usual in defiance of the Supreme Court?
The Supreme Court itself, and, ultimately -- assuming they care -- Congress.
But, in any case, this "new filter on patentability" isn't new with this decision, really -- its a fairly direct application of previous USSC decisions in similar cases -- and isn't contrary even to the CAFC en banc decision in the same case, which came to the same substantive conclusion, with the dominant (though plurality) decision applying broadly similar logic applying the same precedent.
So while the "out of control CAFC defying the Supreme Court on patent issues" story might have some relevance, it really doesn't on this case.
(There's always the problem that what a larger en banc panel might do is different than what the smaller panels of the same court that hear appeals first would do, but that's not a particular problem of the CAFC but of the way circuit courts work in general. If you picked random three-judge panels of the Supreme Court to hear appeals to that court first and had to petition separately by a hearing of the full court, well, I'd expect a panel composed of Thomas, Alito, and Scalia (or, alternatively, Sotomayer, Kagan, and Breyer) would tend to return decisions on lots of issues that wouldn't look like the decisions the full court would return.
The Federal Circuit court has been, essentially, ignoring the supreme court, and has had just about every decision its made on patents in the last 2 years overturned upon appeal to the supreme. I talked to the EFF and they couldn't explain why the circuit was so fucked up. No one's really sure, but they clearly don't listen to the supreme court.
just about every decision its made on patents in the last 2 years overturned upon appeal to the supreme
The Federal Circuit sees 1000 patent cases a year. The Supreme Court has amped up it usual zero or one patent cases reviewed per year to five this past session. And those Supreme decisions have been largely 9-0 against the Federal Circuit. But about 99.5% of CAFC decisions utterly escape Supreme review.
Remember that WildTangent is still on the books as good CAFC precedent holding the exact opposite of Alice. The CAFC can pick whichever it prefers.
The Federal Circuit court has been, essentially, ignoring the supreme court
This is true. It will continue to do so. It will continue to be a corrupt juggernaut focused on bleeding our industry for grifters and trolls and the patent bar.
I talked to the EFF and they couldn't explain why the circuit was so fucked up
It's simple. Courts with general geographic jurisdiction get disinterested generalist judges who try to do a good job being fair and applying the law. Even if they get bad judges, the others on the circuit balance them out because they don't all belong to the same interest. Specialist courts with exclusive subject matter jurisdiction get judges beholden to special interests that promote abuse and parasitism for their own benefit.
Hey - thank you for this comment, it makes a murky situation a bit clearer for me.
My next question is, of course, what's the solution? I can't tell from your comment (being unversed in this landscape) who the 'specialist courts' you reference are -- the Federal Circuit themselves? Some subset of FC?
Or is there some mechanism that assigns these kinds of IP/patent cases to FC, or to that subset of FC, which might be tweaked?
The CAFC is the sole court in the USA that hears patent appeals. [0] All patent appeals go to the CAFC.
The CAFC has limited jurisdiction. It mostly hears patent cases, but also hears federal employee claims and some foreign trade cases. All judges on the court are equal but they have different backgrounds. Judges Dyk and Prost write the most rational and evenhanded decisions on the court and have little background in patents and technology policy. Prost was a labor lawyer and Dyk worked on First Amendment cases before being appointed. The worst judges worked for big science organizations in government and industry, but they write as if they were completely ignorant of science in order to grind down innovators in favor of government granted privileges.
Remember that WildTangent is still on the books as good CAFC precedent holding the exact opposite of Alice.
There is no such thing as "good precedent" from a circuit court that contradicts Supreme Court precedent on the same issue. (Leaving aside the question of whether there really is a direct conflict between WildTangent and Alice given the procedural differences in the cases.)
Precedent is a social convention; there is no rule that judges have to follow precedent.
And the CAFC chooses which precedents it likes to follow however it likes. Supreme Court precedents have no special power over the CAFC. Just look at how Benson is treated by State Street Bank or Alappat.
Like all law, yes, case law is a social convention, but there most certainly is within US case law, quite specific rules requiring judges to file precedent and defining which precedent they must follow (binding precedent) and which they are not required to follow.
This is what I was getting at. It's great if the Supreme Court overturns this stuff, however if the Federal Circuit goes on ignoring it, and every case has to be appealed to the Supreme Court thereafter, then the impact is considerably dampened.
And, I don't think there isn't anything anyone can do about it. Is there even a precedent for a lower court blatantly ignoring the decisions of a higher one, at this level? Is there anything that can be done about it short of an act of Congress (which we can safely assume would never ever happen)?
Couple thoughts. First, Congress could swear in Obama's nominees. I haven't checked but a few years ago, basically he'd nominated hundreds of judges, and congress was refusing to approve any of them. This happened with Bush, too, so it's a bi-partisan thing.
It also means that, if you have a patent case, you must be ready to go to the supreme court. That's a shit ton of money...
This is what I was getting at. It's great if the Supreme Court overturns this stuff, however if the Federal Circuit goes on ignoring it
The Supreme Court affirmed the Federal Circuit in this case.
So, insofar as the precedent on this issue which the Supreme Court applied in this case, its pretty hard to say that the Federal Circuit was ignoring it.
Yep, the Federal Circuit court has a way of interpreting around SCOTUS decisions if they don't like them. The Circuit court sees a lot of Patent cases and they do whatever they can to avoid reversing past decisions. There are a lot of second and third order consequences to this judgement. Hopefully it will stick.
Comments
Doesn't the Federal Circuit have something of a history on cases such as this, where they essentially say 'fuck it, we're not listening to the SCOTUS', and continue to rule as they please? What's to stop them from just doing business as usual in defiance of the Supreme Court?
Chief Justice Roberts will send Justices Kennedy and Ginsburg around to make an example of one of the Federal Circuit justices.
Kind of like how the Mob do business but will gavels instead of baseball bats.
"Ya know, that's a really nice bench ya got there. It'd be a pity if something were to happen to it..."
PS: I think the premise of the Supreme Court justices enforcing their judgments, Mafia enforcer-style, would make a great graphic novel. I can see Ginsburg going all Tommy DeVito on some Federal Circuit judge's ass and burying the body in the Rose Garden.
One of my favorite Onion videos to date is "Supreme Court Rules Death Penalty 'Totally Badass'." Complete with court sketches and everything.
It is indeed totally badass: https://www.youtube.com/watch?v=Hyph_DZa_GQ&feature=kp
Awesome
Judge Scalia:
http://boingboing.net/2011/07/13/tom-the-dancing-bug-57.html
More: https://www.google.com/search?q=judge+scalia+site:boingboing...
There should be a threat of Supreme review and it should be random. And the Supreme reviewers should have the option of firing the judge.
NOBODY expects a Supreme Court Review! Our chief weapon is surprise...surprise and fear...fear and surprise.... Our two weapons are fear and surprise...and an encyclopedic knowledge of the law.... Our three weapons are fear, surprise, and an encyclopedic knowledge of the law...and an almost fanatical devotion to the Constitution.... Our four...no... Amongst our weapons.... Amongst our weaponry...are such elements as fear, surprise.... I'll come in again.
or Sotomayor all Robert Rodriguez style
The Supreme Court itself, and, ultimately -- assuming they care -- Congress.
But, in any case, this "new filter on patentability" isn't new with this decision, really -- its a fairly direct application of previous USSC decisions in similar cases -- and isn't contrary even to the CAFC en banc decision in the same case, which came to the same substantive conclusion, with the dominant (though plurality) decision applying broadly similar logic applying the same precedent.
So while the "out of control CAFC defying the Supreme Court on patent issues" story might have some relevance, it really doesn't on this case.
(There's always the problem that what a larger en banc panel might do is different than what the smaller panels of the same court that hear appeals first would do, but that's not a particular problem of the CAFC but of the way circuit courts work in general. If you picked random three-judge panels of the Supreme Court to hear appeals to that court first and had to petition separately by a hearing of the full court, well, I'd expect a panel composed of Thomas, Alito, and Scalia (or, alternatively, Sotomayer, Kagan, and Breyer) would tend to return decisions on lots of issues that wouldn't look like the decisions the full court would return.
Sure, but then it would probably get appealed...
Yup. Just wrote about this, actually: http://www.sdtimes.com/content/article.aspx?ArticleID=71372&...
The Federal Circuit court has been, essentially, ignoring the supreme court, and has had just about every decision its made on patents in the last 2 years overturned upon appeal to the supreme. I talked to the EFF and they couldn't explain why the circuit was so fucked up. No one's really sure, but they clearly don't listen to the supreme court.
just about every decision its made on patents in the last 2 years overturned upon appeal to the supreme
The Federal Circuit sees 1000 patent cases a year. The Supreme Court has amped up it usual zero or one patent cases reviewed per year to five this past session. And those Supreme decisions have been largely 9-0 against the Federal Circuit. But about 99.5% of CAFC decisions utterly escape Supreme review.
Remember that WildTangent is still on the books as good CAFC precedent holding the exact opposite of Alice. The CAFC can pick whichever it prefers.
The Federal Circuit court has been, essentially, ignoring the supreme court
This is true. It will continue to do so. It will continue to be a corrupt juggernaut focused on bleeding our industry for grifters and trolls and the patent bar.
I talked to the EFF and they couldn't explain why the circuit was so fucked up
It's simple. Courts with general geographic jurisdiction get disinterested generalist judges who try to do a good job being fair and applying the law. Even if they get bad judges, the others on the circuit balance them out because they don't all belong to the same interest. Specialist courts with exclusive subject matter jurisdiction get judges beholden to special interests that promote abuse and parasitism for their own benefit.
Hey - thank you for this comment, it makes a murky situation a bit clearer for me.
My next question is, of course, what's the solution? I can't tell from your comment (being unversed in this landscape) who the 'specialist courts' you reference are -- the Federal Circuit themselves? Some subset of FC?
Or is there some mechanism that assigns these kinds of IP/patent cases to FC, or to that subset of FC, which might be tweaked?
The CAFC is the sole court in the USA that hears patent appeals. [0] All patent appeals go to the CAFC.
The CAFC has limited jurisdiction. It mostly hears patent cases, but also hears federal employee claims and some foreign trade cases. All judges on the court are equal but they have different backgrounds. Judges Dyk and Prost write the most rational and evenhanded decisions on the court and have little background in patents and technology policy. Prost was a labor lawyer and Dyk worked on First Amendment cases before being appointed. The worst judges worked for big science organizations in government and industry, but they write as if they were completely ignorant of science in order to grind down innovators in favor of government granted privileges.
[0] This link is worth reading: http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea...
There is no such thing as "good precedent" from a circuit court that contradicts Supreme Court precedent on the same issue. (Leaving aside the question of whether there really is a direct conflict between WildTangent and Alice given the procedural differences in the cases.)
Precedent is a social convention; there is no rule that judges have to follow precedent.
And the CAFC chooses which precedents it likes to follow however it likes. Supreme Court precedents have no special power over the CAFC. Just look at how Benson is treated by State Street Bank or Alappat.
Like all law, yes, case law is a social convention, but there most certainly is within US case law, quite specific rules requiring judges to file precedent and defining which precedent they must follow (binding precedent) and which they are not required to follow.
This is what I was getting at. It's great if the Supreme Court overturns this stuff, however if the Federal Circuit goes on ignoring it, and every case has to be appealed to the Supreme Court thereafter, then the impact is considerably dampened.
And, I don't think there isn't anything anyone can do about it. Is there even a precedent for a lower court blatantly ignoring the decisions of a higher one, at this level? Is there anything that can be done about it short of an act of Congress (which we can safely assume would never ever happen)?
Couple thoughts. First, Congress could swear in Obama's nominees. I haven't checked but a few years ago, basically he'd nominated hundreds of judges, and congress was refusing to approve any of them. This happened with Bush, too, so it's a bi-partisan thing.
It also means that, if you have a patent case, you must be ready to go to the supreme court. That's a shit ton of money...
The Supreme Court affirmed the Federal Circuit in this case.
So, insofar as the precedent on this issue which the Supreme Court applied in this case, its pretty hard to say that the Federal Circuit was ignoring it.
Is there even a precedent for a lower court blatantly ignoring the decisions of a higher one, at this level?
Jim Crow era Southern courts and practices like lynching had a lot in common with the CAFC's software patent jurisprudence.
Honey badger of a Federal Circuit we've got there.
Yep, the Federal Circuit court has a way of interpreting around SCOTUS decisions if they don't like them. The Circuit court sees a lot of Patent cases and they do whatever they can to avoid reversing past decisions. There are a lot of second and third order consequences to this judgement. Hopefully it will stick.