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Posts Tagged: "Chief Judge Rader"

Congress Initially Rebuffs SCOTUS Dominance of Patent Law, But Not for Long

The chaos created by this forum shopping was exacerbated by differing views of what in these rulings by SCOTUS was holding, and what was simply dicta.  Together with the enactment of Bayh-Dole (which sought to alleviate the prior dismal record of commercialization of federally-sponsored research where the federal government retained the patent rights), Congress created the United States Court of Appeals for the Federal Circuit as the successor to the CCPA, as well as to supplant all other circuit courts as the arbiter of patent law jurisprudence, effective as of 1980.  Creation of the Federal Circuit was also at least an implicit (and more likely, explicit) warning to SCOTUS to tread carefully on patent law jurisprudence and to let the Federal Circuit do the heavy lifting without significant interference or meddling from the highest court in the land. For almost two decades, SCOTUS seemed to heed that warning, rarely interfering with Federal Circuit precedent… But beginning with the eBay case in 2006, SCOTUS started an almost relentless series of rulings which meddle with, chastise, and overturn longstanding Federal Circuit precedent, often using the rubric that the Federal Circuit’s ruling/precedent was “too rigid,” or “too inflexible.”

Photo Diary: Meeting the Threat to America’s Economic Future: US IP & Innovation Policy

On May 9th I attended the International IP Commercialization Council (IIPCC) USA Chapter second annual program at the United States Capitol.  The topic of the event was Meeting the Threat to America’s Economic Future: US IP & Innovation Policy where representatives from IBM, Qualcomm, Personalized Media Communications, the Cleveland Clinic and the University of Michigan, as well as a Who’s Who of IP Leaders and policymakers, shared their real-world perspectives on the state of the US Patent System, and the effects it has and will have on the economy. 

Give Thanks for Oil States

Is a patent a property right? It certainly has been considered so for over 200 years. If it is a property right, to invalidate it should require an Article III (judicial) court with all the normal due process required to invalidate property right… The US Supreme Court will look at these issues when it deliberates Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, starting Monday morning, November 27th. US Inventor, the premier non-profit fighting for inventors’ rights, will be staging a demonstration to bring attention to the issue. You have the unique opportunity to come and be a part of history as we make our voices heard.

The Most Interesting Man in the Patent World Fights to Improve America’s Patent System

“I can tell you that my work in China and Japan and Korea tells me that the companies there are quite delighted to pick up the slack where American companies don’t have quite the protections that they do under their law,” Judge Vader said.  These concerns about American companies not being able to compete with Asian companies echoed the message that Donald Trump frequently expressed during the presidential campaign. During the interview, Judge Rader also mentioned “a really excellent paper from a Hoover scholar and it said they had never found an instance of a strong, growing economy that didn’t correlate with a strong protective patent system.”

Is It Really That Obvious? A Tale of Two Decisions

On January 3, 2017 the Court of Appeals for the Federal Circuit (the court) handed down two decisions relating to obviousness under § 103 – In re: Marcel Van Os, Freddy Allen Anzures, Scott Forstall, Greg Christie, Imran Chaudhri, No. 2015-1975 (Fed. Cir. 2017) (Van Os) and In re: Ethicon, Inc., No. 2015-1696 (Fed. Cir. 2017) (Ethicon). In Van Os, the Appellants appealed a decision from the Patent Trial and Appeal Board (PTAB) affirming the Examiner’s rejection of the claims of U.S. Patent Application No. 12/364,470 under § 103. The court addressed the question of whether the PTAB properly held that the claims were obvious in light of prior art. The court vacated and remanded. In Ethicon, the Appellant appealed a decision from the PTAB affirming, in a merged inter partes reexamination, the Examiner’s rejection of the claims of U.S. patent 7,591,844 (the ’844 patent) under § 103. The court addressed the question of whether the PTAB properly affirmed the rejection of the claims of the ’844 patent under § 103. The court affirmed. These two cases raise several interesting questions, especially given that they were decided on the same day.

Patent Office still not commenting on Michelle Lee or whether agency now has an Acting Director

Sally Yates proves in a very public way why it is a mistake to allow political appointees from the Obama Administration to be held over. But for every public affront how many private episodes will occur where Obama appointees will seek to undermine President Trump? The risk doesn’t seem worth the reward when there are many very capable individuals available and interested. In the patent world, for example, both Phil Johnson and Randall Rader are Republicans. Both have very long and distinguished careers in the patent field. Both Johnson and Rader would clearly take the Patent Office in a new direction and deliver on the Trump campaign promise to Make America Great Again. There are no doubt others who are highly qualified who would also do the same, while being ideologically aligned with the President and the Republican party. So why is there a need to keep Michelle Lee?

Who will President Trump Nominate as the next Director of the Patent and Trademark Office?

Among the names under consideration is Randall Rader, the former Chief Judge of the United States Court of Appeals. But according to patent expert and noted commentator Hal Wegner, who generally does have well placed sources for this kind of information, the short list currently includes Phil Johnson (Johnson & Johson), Michael McKeon (Fish & Richardson), and Steve Pinkos (American Continental Group)… Another scenario being floated is that current USPTO Director Michelle Lee will be asked to stay on, a rumor flamed by remarks by Congressman Darrell Issa (R-CA) made at a CES panel last weekend… There has also been some speculation that Kevin Rhodes, who is Chief IP counsel at 3M, is or was under consideration at one point.

LeEco strategic agreement with former CAFC Chief Judge Rader is latest move into U.S. market

Although the scope of Rader’s role with LeEco remains to be seen, the fact that the Chinese electronics company went so far as to retain a former Federal Circuit judge with a great knowledge of American IP law strongly suggests that LeEco is very interested in protecting its patent rights in the U.S. market.

Rule 36 Judgment: The growing problem of one word affrimance by the Federal Circuit

In PCT International, Inc. v. Holland Electronics, LLC, the use of a Rule 36 judgment is particularly disconcerting because the Federal Circuit upheld the issuance of a permanent injunction by the district court. Since the Supreme Court’s decision in eBay v. MercExchange over a decade ago it has become increasingly difficult, indeed at times impossible, for victorious patent owners to enjoy exclusive rights once they have prevailed in a patent infringement litigation. Issuing a Rule 36 judgment where the patent owner was victorious and a permanent injunction stands robs the patent owner community of vital Federal Circuit precedent that could otherwise be used to inform district courts on the appropriateness of this extraordinarily important remedy.

What Mattered in 2014: Reflecting on the Biggest Moments in IP

It is one again time to take a moment to look back on the year that was, reflecting on the biggest, most impactful moments of the year. For us that means looking backward at the most impactful events in the world of intellectual property. Unlike in years past where we would get a variety of different perspectives from industry insiders, there…

Judge Michel Speaks on the Future of the Federal Circuit

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.”

CAFC Shock: Judge Randall Rader Announces Retirement

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.

Disbanding the Federal Circuit is a Bad Idea

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.

The Evolution of Patent Jurisprudence, from Giles Rich to Howard Markey to Randall Rader

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.”

CAFC Surprise: Rader Stepping Down as Chief Judge

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.