Earlier this afternoon Judge Kara Stoll of the U.S. Court of Appeals for the Federal Circuit spoke to a luncheon audience at the American Intellectual Property Law Association (AIPLA) annual meeting in Washington, DC.
AIPLA Executive Director Lisa Jorgensen sat with Judge Stoll for a fireside chat. Jorgensen began by asking Stoll to tell the audience about the story of how she received the call inquiring about her interest in being appointed to the Federal Circuit.
“Family is very important to you, I’m going to ask you about the call you received to see if you were interested in going onto the Federal Circuit,” Jorgensen said.
“It was a Saturday and I was in a toy store with my kids, and everything sort of slowed down,” Stoll said as the audience chuckled. “I thought I’ve had a great career and I’m encouraging my kids to try new things, so I should as well. I knew this would be a great opportunity for me.”
“Seeing these cases as a judge it’s very different because I have to decide if a trial judge erred,” Stoll explained as she talked about the issue of waiver, addressing things that she views differently now that she is a judge compared to when she was an attorney. As an attorney Stoll explained that she didn’t think waiver should be applied very often, if at all. Now, however, Stoll explained that since the role of the Federal Circuit is to determine if the trial judge erred it makes more sense to her that if the issue wasn’t raised below it should be considered waived because you simply cannot say the trial judge erred when the issue was never raised and considered.
Jorgensen then pivoted to attempt to ask more difficult questions regarding the current climate and standing of the patent system. As you might have expected, Stoll treaded lightly, but did respond.
Jorgensen asked whether the current patent environment is limiting or helping innovation. “You all here probably have a better view if innovation is being limited,” Stoll explained. “One of the more challenging issues I’ve seen since I’ve been at the court is the 101 test and the Alice/Mayo test. It is a difficult line of cases to administer… I do find that and have found that to be a challenging area in the cases I’ve worked on at the Federal Circuit.”
Judge Stoll acknowledged that it can be very difficult for clients who have invested under one set of rules to then later on find out that that patents they acquired are no longer valuable because the law has changed. She said:
“As somebody who has worked in patents for a long time I realize it can be very difficult for clients where you’ve invested in your intellectual property under one set of rules only to have the rules completely change and your intellectual property is then of no value or of uncertain value. And on 101 I also think it is important not to confuse Section 101 with Sections 102 and 103, but that said to the extent there is any need for change that would be for Congress or the Supreme Court.”
“We have had the Supreme Court tell us that we do not need special patent rules,” Stoll said as she explained one area where amicus briefs can be helpful. She would explain that amicus briefs can be helpful when they point out new information and explain how that same or similar issue is handled under copyright law, for example.
“Something that distinguishes a good appellate lawyer from a great appellate lawyer is knowing the record well,” Stoll said. “A great attorney at oral argument hears the question asked and answers the question asked with yes or no and with an explanation, if necessary…. And is willing to make concessions… it is better to admit you don’t know something than pretend that you do.”
“A great brief can really dig into the issues more. Get into the facts and details of the case law to show why your client should win,” Stoll explained. “It is surprising that some briefs do not tackle the issues in the level of depth I need.”
Image Source: Gene Quinn.