Patent Law Institute Live Blog: Dialogue Between the Bench and Bar


Welcome to the Patent Law Institute‘s last panel of the day. The panel is entitled, “Dialogue Between the Bench and Bar”, and has a great lineup including the Chief Judge of the Federal Circuit and leading members of the patent appellate bar who discuss hot patent topics affecting patent practice. The panel includes Donald R. Dunner, Hon. Randall R. Rader, Seth P. Waxman, Dean John M. Whealan, and Hon. William G. Young. Here are the highlights:

On the U.S. Court of Appeals for the Federal Circuit:

Hon. Rader, Chief Judge, United States Court of Appeals for the Federal Circuit:

The term “specialized” court was an attack on the court in the creation era, but Congress specifically negated that by providing the court a broad jurisdiction. The culture of commercial litigation requires judges to seek the kind of resolution that allows the American CEO to quickly respond to market pressures. There’s a requirementof bright line rules in this culture of the court, but this does not facilitate the market. Thus, the Court of Appeals has a great strength in not being bound to bright line rules like other courts.

Seth Waxman:

The U.S. doesn’t produce anything that isn’t intellectual property. It is very important to have a Court of Appeals that will do its best to articulate whether there are bright line rules or general guidance for industry and the market as a whole. The AIA gives the PTO quite a vigorous examination process and judiciary role, thus the courts will have to give some deference to the expertise of the PTO.

Hon. Young, District Judge of United States District Court, District of Massachusetts:

Our system is the slowest in the world and the most expensive. The solution for District judges is to make motions for preliminary injunction to speed up the process. If the issues truly are a matter of law, then they need to be addressed out right.

Dean John Whealan:

The Federal Circuit deserves some credit. They’re in the business of fixing wrongs. When trying to figure out certain tests or standards, the underlying statutes don’t always have the answers, thus the District Court has no choice but to determine what the rules and answers are. Bright line rules can’t really fix everything, but rules that are “dark grey” or “light beige”, it gives District judges more flexibility in deciding the issues.

On the U.S. Supreme Court

Seth Waxman:

To get cert in the Supreme Court, you have to show an irreconcilable split between different state courts or district court, such that these different courts would decided the same issue differently. The Supreme Court sees itself as a court of harmonization. The Supreme Court will also grant cert if the Court of Appeals grants an act of Congress as unconstitutional. There’s a handful of cases that don’t fit in these categories, but they’re so profound and important that the Supreme Court will take the case. The majority of cases that go to the Supreme Court from the Federal Circuit are reversed; otherwise, it wouldn’t make sense that the Supreme Court would take a case simply to affirm. Unless the Supreme Court takes a case from the Federal Circuit, the Federal Circuit remains the Supreme Court of patent law.

Hon. Rader, Chief Judge, United States Court of Appeals for the Federal Circuit:

Our Supreme Court is the greatest of its kind in the world, where their sandbox is the Constitution where they build beautiful castles. Their issues are being decided against a backdrop of Constitutional terms, so they perceive the judicial job as one of balancing interests. Because of the focus on Constitutional terms, the Supreme Court may often lose focus on what the greater issues are and not answer the questions at hand.

Tokyo, Shanghai, Beijing

Hon. Rader, Chief Judge, United States Court of Appeals for the Federal Circuit:

30-40% of the Federal Circuit’s cases deal with foreign parties. International enforcement of intellectual property sometimes can only be successful when judges meet face to face. Its a great harm to our economy and a tragedy if our intellectual property isnt protected the same way it is in Washington as it is in Beijing or elsewhere in the world. By spreading this notion internationally, the U.S. judiciary will hopefully spread a harmonization of policies such that our intellectual property would be protected and our economy benefited.

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