Posts in Federal Circuit

While there can be disingenuous arguments made about the abstractness of a media product or a sponsor message, who in their right mind could ever even suggest that “an Internet website” is abstract? Is “an Internet website” abstract? Is the “general public” abstract? Is a consumer abstract? Contemplate these questions as you, a member of the general public continues to read this article on this Internet website! We apparently have jumped the shark and turned the law of software patent claims into a useless, ridiculous philosophy assignment that asks whether something that clearly exists doesn’t exist. So are you, a consuming member of the general public who reads Internet websites real, or are you abstract?

The Federal Circuit issued a decision in CardSoft v. Verifone, which the Court overturned the district court’s claim construction. Overturning a district court’s claim construction is hardly unusual, and perhaps more typical than it really should be, but that is another story for another day. What was unique about this particular case was that the Federal Circuit also went on to rule that CardSoft had waived any argument that the defendants had infringed under what they determined to ultimately be the correct claim construction.

The label “anti-patent” is not meant as a criticism or insult. Instead I mean it is a purely descriptive way that recognizes a distinct and very real viewpoint; one that we have seen periodically throughout history but which is inconsistent with what the Framers believed. Therefore, I disagree with Judge Chen that it is not helpful to recognize that there are Judges on the Federal Circuit who, based on their written decisions, show a tendency to eschew a pro-patent viewpoint.

Kara Farnandez Stoll is presently a partner at Finnegan, Henderson, Farabow, Garrett and Dunner, LLP in Washington, D.C. She has extensive experience in patent litigation, and has represented clients at both the district court and appellate levels. Stoll has served as lead counsel on a number of cases before the United States Court of Appeals for the Federal Circuit.

This theme reemerged later when we talked generally about computer implemented innovations. Judge Linn explained that wrestling with patent eligibility as it applies to innovations that require machine intervention “is a very complex issue,” which is made more complicated when you try and rationalize opinions from the Supreme Court. “I have great difficulty rationalizing the Supreme Court’s opinions in Flook and Diehr, and in many regards I think those decisions are irreconcilably in conflict,” Judge Linn said… “I don’t look at it as a low point. I look at it as an indication of the complexity of the issues,” Linn said. He went on to explain that the Court was “trying to resolve this complex issue in a way that made sense but reflected the precedent we had before us from the Supreme Court. In the end we just couldn’t agree. We got to the point where we recognized that the Supreme Court would have to give us the answer.”

The district court imposed a fee-shifting sanction as a condition of permitting AntiCancer to supplement the Preliminary Infringement Contentions that the district court found defective under Patent Local Rule 3.1. The district court issued an Order that would have allowed AntiCancer to supplement its infringement contentions, but only if it concurrently pay the attorney fees and costs incurred by the defendants in connection with their motion for summary judgment related to the defective infringement contentions. AntiCancer objected to this condition, and the district court entered summary judgment… It seems fundamentally unfair for a defendant to have to pay for a filing that becomes nullified by amended infringement contentions, whether they appear in an Amended Complaint or in a filing required by a local rule.

In a concurring opinion, Judge O’Malley, who was joined by Judge Hughes, wrote that she felt constrained by the Federal Circuit’s precedent in In re Seagate and Bard Peripheral Vascular v. W.L. Gore, but that recent Supreme Court decisions call into question the continued viability of that precedent. As such, Judges O’Malley and Hughes have urged the Federal Circuit to reconsider en banc the standard for awarding enhanced damages under 35 U.S.C. 284. With willful damages back on the table future patent reform is in question.

Simply stated, strong patent rights are an absolute prerequisite for a high tech economy…. With a steep and significant erosion of patent rights and a horribly uncompetitive corporate tax structure the future for high tech companies in the United States is bleak… The world’s best and strongest patent system combined with good tax policies made the U.S. the dominant force in the world. Now we have an antiquated tax system that ranks us at or near the bottom and many biotechnology and software innovations aren’t patentable, while others are declared obvious de novo. Say it out loud. It makes even less sense when you speak the words.

This is just another example of the Federal Circuit substituting its own decision for that of the decision maker at the district court level. It is one thing when the Federal Circuit ignores the factual findings of a district court judge, but an entirely different matter when facts found by a jury are ignored… Sadly, the Federal Circuit, or at least some panels, no longer operate as an appellate court. The Federal Circuit operates as a super-trial court, particularly with respect to obviousness. This is extraordinarily problematic given that the Supreme Court has shown no interested in taking even egregious obviousness decisions for appellate review.

The Federal Circuit, per Judge Newman and with Chief Judge Prost and Judge Hughes, found that the Federal Circuit lacked jurisdiction to hear the appeal from a decision to remand the case back to State court, citing 28 U.S.C. 1447(d), which makes unreviewable “[a]n order remanding a case to the State court from which it was removed…” Section 1447(d) seems, and the outcome likely unfair, although no one will likely shed a tear for MPHJ.

Judge Michel: “I’m aghast at the suggestions that are made in some blogs that the Federal Circuit be abolished. The idea that you need more so-called percolation by having different appellate courts take different views on patent laws is completely crazy in my opinion. There’s plenty of percolation just within the Federal Circuit and the Supreme Court doesn’t seem to have the slightly problem identifying cases where they feel that corrections are needed. Look, I don’t think the Federal Circuit’s perfect. I’m glad there is a Supreme Court. And whether I agree with Alice or don’t agree with Alice or love KSR or didn’t love KSR is really beside the point. Every power center needs some supervision over them. In the case of the Congress it’s the voters. In the case of the court it’s the Supreme Court, or a higher court in the hierarchy. And I think that’s all well and good. So the Federal Circuit isn’t perfect but I think it’s a very good court. I think it’s been a huge improvement over the chaos of before 1982 and the various regional circuits. And so I hope we don’t over correct by getting rid of the Federal Circuit.”

In what can really only be characterized as a stunning development, earlier today Judge Randall Rader of the United States Court of Appeals for the Federal Circuit announced that he is retiring effective June 30, 2014. This announcement comes only weeks after he stepped down as Chief Judge.

Given the anti-patent climate that has been created by major Silicon Valley technology companies, the Obama Administration and certain Members of Congress, the news that Judge Rader will step down as Chief Judge comes at a difficult time… While I do hope the Federal Circuit can find common ground, there is no doubt that making sense of Supreme Court precedent on patent law issues is virtually impossible. The remedy for this is not to dismantle the Federal Circuit. The remedy would be for the Supreme Court to get a clue, or to take patent cases only to the extent that there is an irreconcilable split within the Federal Circuit. That would be far more consistent with the intent of the Federal Circuit when it was created.

Written by Don Dunner: ”Fifty-four years ago, a lawyer in the prime of his career was appointed by President Eisenhower to serve as a judge on the Court of Customs and Patent Appeals (CCPA). Within weeks if not days of that appointment, then Chief Judge of the CCPA, Noble Johnson, chose as his sixth and last law clerk a second year law student. Giles Sutherland Rich was the new judge; I was the new law clerk. Little did I realize at the time that the new judge on the block was about to embark on a judicial odyssey that would extend just short of the 21st century and that would propel him into the rarified atmosphere occupied only by true giants of the profession.”

Chief Judge Randall R. Rader today announced that he will step down as Chief Judge of the United States Court of Appeals for the Federal Circuit on May 30, 2014. This surprise announcement by Judge Rader, who turned 65 on April 29, 2014, means that Judge Sharon Prost will become the next Chief Judge of the Federal Circuit… This alone will draw a sharp contrast between Judge Prost and Judge Rader given that Judge Rader has for years been a strong, vocal supporter of strong patent rights. Thus, it would be easy to envision a future where the industry needs to be ready for a different philosophical message coming from the CAFC.