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."
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          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

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