That isn't what the article says, though: 'As patent scholar Mark Lemley put it on Twitter, “we’ve got two Federal Circuits on this issue, and it seems to depend on the luck of the draw"'. Mark Lemley is a high profile (sceptical) patent scholar. If he is correct, then there are some voices of sanity on the Federal Circuit. The question is, is the influence of the voice of sanity increasing or decreasing?
It's about the same.
At least one of the newly appointed (in the past 3 years) judges is rabidly pro-patent
In this case, the decision is by chief judge radar, who believes the court's goal should be to strengthen intellectual property protections.
How do i know this?
He told me (and the rest of the class) this, when I took his class on the federal circuit in law school many years ago.
Silly me, of course, always thought courts were there to decide law, not have policy goals.
In any case, this is one of a long line of the federal circuit giving the middle finger to the supreme court.
Judge radar and others basically believe the supreme court is not helpful to them when they are trying to create rules practitioners can follow, so he tries to ignore them when possible.
He also cites his completely ridiculous reasoning from CLS Bank:
At bottom, with a claim tied to a computer in a specific
way, such that the computer plays a meaningful role in the
performance of the claimed invention, it is as a matter of
fact not likely to pre-empt virtually all uses of an
underlying abstract idea, leaving the invention patent
eligible
I'm not even sure how he can say this with a straight face.
Preempting virtually all uses of the underlying abstract idea is a rationale for not making abstract ideas non-patentable, not the test for what is a non-patentable abstract idea.
There is nothing unbiased about having a judicial philosophy. "Bias" means you unfairly favor one party in a particular case over the other. Lack of bias does not require that you approach each case as a tabula rasa.
For example, I imagine lots of people on this website would be happy if a judge took an expansive view of the 4th amendment and asserted that was important for courts to strengthen 4th amendment protections. And that would be totally okay.
In the theoretical world where ethics is as it is on the bar exam: Maybe? Hard to say, you'd probably need a bit more facts. i'm sure with enough data from speeches he has given, yes.
However, In the real world, where manufacturing evidence against people gets you nothing, or repeatedly encouraging clients to lie under oath, and helping them, gets you suspended for 9 months (http://overlawyered.com/2013/05/n-y-p-i-lawyers-are-suspende...), no, it would not make any difference.
(I agree, btw, that maryland would have disbarred those guys. I'm licensed there, and it's one of the few states that takes ethical obligations seriously)
I am sure he knows better than I. However from my point of view, those two positions are likely to be "extreme" and "very extreme".
(My point of view is that we would be better off without software patents. It would be hard to find a US patent lawyer or court who would agree.)
Also a random note in case anyone gets confused. There is only one such court, but cases are often heard by a subset of the justices. So what result you get can depend on which justices hear the case. Mark Lemley's claim is that there is a sharp divide between the justices.
> There is only one such court, but cases are often heard by a subset of the justices.
To be specific, like all U.S. Courts of Appeal, the Federal Circuit hears cases in panels of three judges, drawn from the overall pool. In certain circumstances (notably, anything that requires a prior panel opinion to be overruled), a majority of the judges on the court may vote to rehear a matter en banc, in which case all the judges on the court vote on the outcome.
If I recall correctly, the panels are assigned randomly as the cases come in, so if there is a marked division in opinions within the court, the outcome can depend heavily on the luck of the draw.
(My point of view is that we would be better off without software patents. It would be hard to find a US patent lawyer or court who would agree.)
Justice Stevens wrangled four votes on the Supreme Court for that proposition as recently as 2010. If we could replace some of the pro-software patent majority (Roberts, Scalia, Kennedy, Thomas, Alito) in the Bilsky decision, maybe Breyer could wrangle five votes someday.
Of course, the CAFC might just overrule the Supreme Court if that ever happens.
(You say the CAFC can't overrule the Supreme Court? Wrong-o! [0] Don't read the link unless you're in a profanity-safe environment; not because it contains profanity, but because you're likely to shout some.)
Sadly, since 2010 the mountain has gotten a bit higher: the "no software patents" side has lost Stevens' vote and his replacement Kagan's position is unclear.
Patent lawyers tend to be significantly more in favor of patents than Justice Stevens.
As for courts, given currently binding precedent for software patents, barring changes in legislation, no court other than the Supreme Court should decide that software patents should not be allowed. Given that the Supreme Court failed to come to that conclusion, it is hard to find a court that would say that. :-(
The CAFC handles more than patent cases. It also deals with federal employee disputes and some international trade law.
The judges are appointed not just from the patent bar but all the areas of jurisdictional experience.
Today there are six patent lawyers and four others on the CAFC with one of each awaiting confirmation. There is a rumor that Obama's patent lawyer appointment is actually better than average, but we won't know for a while; the Senate isn't approving new judges much anymore and vacancies continue to accumulate throughout the system.
The CLS bank v. Alice decision this spring came down 5-5. The Alice patent was one of those egregiously bad, transparently fraudulent, and obviously invalid ones we hear about so often. It claimed a monopoly over most any kind of traditional escrow process organized by a third party over a computer network. The CAFC found it valid initially and then threw it out -- barely and over the technicalities of a tie vote.
The final decision was five patent lawyers in favor of validity and four non-patent lawyers joined by one patent lawyer finding invalidity. The dissenting opinions were particularly virulent and nasty in defending the patentability of everything you can imagine and wanting every bad and destructive monopoly to be found valid and granted repeatedly forever.
It's a funny thing; I once thought the way to clean up medical malpractice litigation would be a board of expert judges or advisors who knew when the science was real or just made up for the case. In fact, now I see that system would be even worse. There might be fewer decision made by juries on the basis of gross scientific illiteracy, but the new judges would become throughly corrupt and abuse the system mercilessly. In fact, every kind of special purpose court is probably worse than the cost of ignorance and random wrong decisions that generalist courts make.
I am fully aware that they handle a lot more than patent cases. However most of the decisions that they make which I have an opinion on do involve patents. So I tend to focus on what they do there.
My inclination is to assume that they are likely to be as bad on other areas as they specifically are for patents. However I don't pay attention to that, so I really don't know.
