Chief Judge Rader Apologizes for Recusals

On Friday, May 23, 2014, right before the long holiday weekend, news began to circulate that Chief Judge Rader had announced that he would be stepping down as Chief Judge of the United States Court of Appeals for the Federal Circuit.

Immediately, the Wall Street Journal and began speculating that Judge Rader’s decision to step down was tied to an email endorsing attorney Edward Reines, a patent lawyer at Weil Gotshal & Manges LLP and president of the Federal Circuit Advisory Council. This speculation picked up when Rader released a letter (see below) to the public addressed to the other members of the Federal Circuit apologizing for the appearance of impropriety associated with his email to Reines (whom he did not name directly), which necessitated his several recent recusals.

I find myself speechless, which doesn’t happen often. On the one hand, those that know Judge Rader know that he is extremely strong-willed and always eager for a vigorous substantive debate. The thought that any familiarity with someone who appears before him would lead to any advantage strikes me as thoroughly nonsensical. On the other hand, ethics for lawyers and even more so for judges is not about truth, but rather appearances.


What Is a Rule 36 Judgment?

Recently, the Federal Circuit issued a ruling in IA Labs CA v. Nintendo Co., LTD, which upheld Nintendo’s victory in the patent litigation brought by IA Labs in the United States Federal District Court for the District of Maryland. See Nintendo Wins Attorneys’ Fees Fighting Baseless Patent Lawsuit. The decision was hardly extraordinary. It simply read: “AFFIRMED. See Fed. Cir. R. 36.” This is what is called a “Rule 36 judgment,” or sometimes a “summary affirmance.”

A Rule 36 judgment can be entered without an opinion when it is determined by the panel that any one of five conditions exist and a written opinion would not have precedential value. The five conditions are:

  1. The judgment, decision, or order of the trial court appealed from is based on findings that are not clearly erroneous.
  2. The evidence supporting the jury’s verdict is sufficient.
  3. The record supports summary judgment, directed verdict, or judgment on the pleadings.
  4. The decision of an administrative agency warrants affirmance under the standard of review in the statute authorizing the petition for review.
  5. A judgment or decision has been entered without an error of law.


CAFC Chief Defends the Patent System and Defines “Patent Troll”

Chief Judge Randall R. RaderRecently Chief Judge Rader of the United States Court of Appeals for the Federal Circuit made a strong defense of the patent system in a chat billed as a fireside chat at the AUTM annual meeting in San Antonio, Texas. In his opening salvo into the issue of patent litigation abuse, the Chief explained:

Interestingly, that has been misdirected towards the patent system. Even earlier this afternoon I received an invitation from a House Committee to come and talk about abuse of the patent system. I’m not sure I’ll be able to attend, but if I could attend I’ll tell you exactly what I would say: There is nothing wrong with the patent system.

The patent system has a narrow focus. It is not a consumer affairs program. It is not a manufacturer’s guarantee compliance program. It’s not a competition program.  It has one objective, summarized well by the Constitution: promote the progress of science and the useful arts. It’s there to create more investment and more incentive for innovation and invention. The things that the patent system is criticized for are not its job.


Dialogue Between the Bench and Bar

At the 6th Annual Patent Law Institute a few months ago, attendees bore witness to a panel discussion unlike any other. The panel, entitled, “Dialogue Between the Bench and Bar,” featured a lively discussion between Seth Waxman, former Solicitor General of the United States and currently Partner at Wilmer Hale, and Chief Judge Randall Rader of the United States Court of Appeals for the Federal Circuit. At issue was the mixing of the law and politics, and whether the act of  parties lobbying the White House in order to obtain a favorable amici brief from the Department of Justice was a dangerous ethical quandary.

The discussion was described as “lively, perhaps even explosive.” See for yourself below:

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The “6th Annual Patent Law Institute” is currently available for viewing on demand. The on demand program includes access to the Institute’s Course Handbook.

Classen v. Biogen: CAFC Tries To Target Patent Eligibility But Misses

Ryan Chirnomas, Partner in the Biotechnology group at Westerman, Hattori, Daniels and Adrian, sent in this article discussing the Court of Appeals for the Federal Circuit’s recent Classen v. Biogen decision.  He highlights the key points of the decision and why he believes this case is a missed opportunity to clarify the machine-or-transformation test of Bilski.

Not long after issuing opinions in AMP v. USPTO and Prometheus v. Mayo, the CAFC has again taken on the difficult questions of patent eligible subject matter in Classen v. Biogen.  In 2008, the CAFC issued a three-sentence non-precedential opinion holding that Classen’s claims do not recite patent eligible subject matter.  This decision was appealed to the Supreme Court and subsequently remanded to the CAFC after the Supreme Court’s Bilski decision.  The instant decision includes a discussion of patent-eligible subject matter, as well as the safe harbor exception to infringement of pharmaceutical patents.  This discussion is limited to questions of patent eligible subject matter.  This decision relates to three patents:  U.S. Patent Nos. 6,638,739 (“the ‘739 patent”), 6,420,139 (“the ‘139 patent”) and 5,723,283 (“the ‘283 patent”). (more…)