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, February 07, 2017

          Civil Rights Lawyer Zahra Billoo ’09 Is Fighting President Trump’s “Travel Ban”

          As leader of a Council on American-Islamic Relations chapter, she is standing up for the rights of Muslim Americans in court and in the media.
          Monday, February 06, 2017

          Hadar Aviram assumes the presidency of the Western Society of Criminology

          Congratulations to UC Hastings Professor Hadar Aviram, who is set to begin her term as the president of the Western Society of Criminology.
          Wednesday, February 01, 2017

          Statement from Dean Faigman: Deans Letter to California Supreme Court re California Bar Exam

          Today a group of 20 deans of ABA-accredited California law schools submitted a letter to the California Supreme Court, calling upon it to “exercise its legal jurisdiction over the California State Bar to adjust its scoring methods to bring them in line with the nation’s at large.”
          Wednesday, February 01, 2017

          Thinkers & Doers: January 2017

          THE RESISTANCE -- Haiku for Law Students -- Judge Gorsuch’s jurisprudence -- A Populist Crusade Against Corporate Greed -- THE MOST READ HBR ARTICLE OF ALL TIME -- Mom bias at work -- Will Trump’s refugee "ban" survive? -- Alumni recording artists -- and much more
          Monday, January 30, 2017

          Statement from Dean Faigman: President Trump's Executive Order re Travel

          The UC Hastings’ seal carries the words fiat justicia -- Let Justice Be Done. This motto is not a hollow promise; it is who we are and what we do.
          Go to News Archive