Tuesday, September 16, 2014

          Feldman on Tug of War between Supreme Court & Federal Circuit

          Coming of Age for the Federal Circuit addresses "indications of how the Federal Circuit is responding to recent rebukes."
          Sample alt tag.
          Robin Feldman, Professor of Law and Director, Institute for Innovation Law

          As the Supreme Court begins its new term, Professor Robin C. Feldman publishes an article on how the Federal Circuit has responded so far to the Justices’ recent rebukes.

          Highlights of Coming of Age for the Federal Circuit include the following:

          • The Supreme Court took more patent cases last year than any year in the Federal Circuit’s history—and soundly rejected the Federal Circuit’s logic throughout.
          • Many characterize the decisions as the Supreme Court’s preference for standards over rules, but that misses the heart of what is happening. The Supreme Court is determined to Coax, cajole, and when necessary, club, the Federal Circuit into coming of age.
          • Some indications are positive, but others suggest that the Federal Circuit is not entirely ready to relinquish its role as the judiciary’s "enfant terrible."
          • Over and over again, the message from the Justices has been, “forget the clever drafting and technical workarounds, what is really going on here,”while the message from the patent bar and the Federal Circuit has been, “but this is how we do things.”
          • In addition, much of the Federal Circuit’s tinkering over the decades has been in the service of an expansive interpretation of patent law and patent holder rights. In case after case, however, the Supreme Court cut back on the broad roaming range that patent holders have come to enjoy and expect from the Federal Circuit
          • Some signs are positive that the Federal Circuit is listening to the Supreme Court’s admonitions. Following the Supreme Court decision in Alice, the Federal Circuit in recent weeks invalidated software patents in two cases, BuySAFE and Planet Bingo.
          • Other signs are less encouraging. Consider the fee shifting cases (described at page 13 of Feldman’s article). The Federal Circuit, having been told to get out of the game, has used a large bullhorn to tell trial courts that just because the Supreme Court says you are allowed to award fees, it doesn’t mean you have to.
          • Similarly awkward has been two Federal Circuit judges, sitting by designation as trial court judges, denying fee award motions since the Supreme Court ruled. These decisions raise the appearance that Federal Circuit judges may be trying to resist Supreme Court precedent by moving to the trial courts to shape the decision-making. The judges’ language does not dispel that notion.
          • If the Supreme Court is unsuccessful in prodding the Federal Circuit into maturity, there is always a risk that the appellate court could be kicked out of the federal courthouse for good. After all, thirty-five-years-old is a bit late for a coming of age.

          The article to be published in The Green Bag, is available on SSRN at http://ssrn.com/abstract=2496763

          MEDIA CONTACT:  

          Alex A.G. Shapiro
          Director, Communications & Public Affairs
          UC Hastings College of the Law
          Office: (415) 581-8842
          Cell: (415) 813-9214
          Email: shapiroa@uchastings.edu

          Go to News Archive

          Share this Story

          Share via Facebook
          Share via TwitterShare via EmailPrint Friendly Version

          Other Recent Stories/ RSS

          Tuesday, January 17, 2017

          Professor Leo Martinez Elected Fellow of American College of Coverage and Extracontractual Counsel

          One of only five academics in elite organization focused on the creative, ethical, and efficient adjudication of insurance coverage and extra-contractual disputes, peer-provided scholarship, professional coordination and the improvement of the relationship between and among its diverse members.
          Thursday, January 12, 2017

          ‘She taught me the meaning of true bravery’: 2L Kelsey Campbell advocates for refugee legislation

          Former Pentagon foreign policy advisor and Air Force veteran promotes visa programs to protect refugees, like her friend Sura, who supported U.S. Armed Forces as interpreters.
          Thursday, January 05, 2017

          How to Ask a Question: Renowned trial attorney Shanin Specter brings his expertise back to UC Hastings

          Whether to capture the attention of a jury, conduct a deposition, or even order a Starbucks, Shanin Specter shares his experience on the best way to ask and answer a question in his upcoming “How to Ask a Question” course at UC Hastings.
          Tuesday, January 03, 2017

          1L Ryan Khojasteh Appointed to San Francisco Immigrant Rights Commission

          “It's for my generation to rise up, to play our part, and to allow other people to have hope,” says Khojasteh, son of immigrants.
          Sunday, January 01, 2017

          Thinkers & Doers: December 2016

          FACULTY on everything from the future of environmental law to “The Historical Origins of American Regulatory Exceptionalism" -- Prof Feldman receives a World Technology Award – Which ALUMNI was part of the trial team that successfully swayed a Texas jury to order Johnson & Johnson to pay a record $1 billion (yes, that’s with a “B”) to patients for faulty hip implants? --  STUDENTS enjoy spicy Thai food with the TENDERLOIN Economic Development Project for their Restaurant of the Week campaign -- and so much MORE.
          Go to News Archive