The second page is really good stuff. Particularly the part about Supreme Court intervention and the need for a specialized patent appeals court. I think the Supreme Court patent jurisprudence over the last several years has been extremely good, and I think the need for a specialized patent appeals court is questionable at best. People tend to think we need specialized patent judges who can understand the technology, but I think this is misguided. Judges are experts at quickly learning the 10% of any field they need to make a decision. Technology isn't any more complicated and in need of specialized judges than say a dispute involving complex insurance or securities instrument. At the same time, generalist judges would be much better at weighing the larger issues of fairness involved in a case. There is a real lack of balance in the Federal Circuit and I think that's partly because Federal Circuit judges don't field other kinds of cases.
It seems pretty clear that something was broken with the old system, before the creation of the CAFC. Plaintiffs were only winning 20-40% of the time.<p>Considering that<p>1. the plaintiff is starting with a rebuttal presumption of patent validity,<p>2. it is the plaintiff who makes the decision whether or not to sue, which should weed out a lot of weak cases, and<p>3. this was before software patents, back when examiners actually had a deep understanding of the art in the fields whose patents they examined, so there was not a flood of bad patents being issues,<p>I'd expect in a fair system for plaintiffs to win the majority of cases.
This is pretty interesting stuff. For example, I wasn't aware of the "jurisdiction race" that happened when new patent were issued. It puts into context some of the changes at least.<p>The most depressing, even alarming, part of this is:<p>> Instead, patent appeals are exclusively heard in DC by judges who live and breathe patent law. Unsurprisingly, this leads to insular thinking. For example, when we interviewed Paul Michel, who served as the Federal Circuit's chief judge from 2004 to 2010, he didn't seem to understand the problems facing small software companies. "If software is less dependent on patents, fine then. Let software use patents less as they choose," he said, seemingly oblivious to the fact that software companies don't have the option to opt out of patent troll lawsuits.<p>Seriously? The court seems to have no idea of the Pandora's Box they've opened by loosening the "obviousness" constraints.
Clearly a bit biased but the argument that patent law should rise up through the circuits like any other branch of law is a good one. That is something actionable you could ask your representative to 'fix' (note to would be lobbiests, the best results are when you whine for something achievable, this wins on that basis it "makes sense" (which should patent law be special now) and its within their purview.
I'm glad not to be the only one saying the Federal Circuit defied Supreme Court precedent in <i>State Street</i>. I do think we're a long way from a Diehr/Flook/Benson standard for software patents, though. The Supreme Court is being very careful these days to say nothing beyond answers to the questions brought to them. You won't see any long rants against lower courts like in Diehr.
Uh oh. I understand Europe is planning on introducing a specialist patent court. That could go similarly badly as it is even more likely to be full of patent specialists.
I know this is (re)opening a can of worms, but the interesting part about this article is that it <i>very clearly</i> highlights why it would have been a terrible idea for the recent Apple vs. Samsung trial to be decided by a jury of patent specialists instead of laymen.