Judge Dyk has been at the CAFC since 2000. His clubhouse mentality was apparent, as he readily criticized Congress, the PTO, the Solicitor General's office, and the Supreme Court, but not his home court. He wished the CAFC would tinker some adjustments, but, when put to him, refused to acknowledge that the CAFC was the single largest fount of the complexity and confusion over which he fretted, while de facto admitting it.

The judge told of CAFC rigid rules swept away by the Supreme Court, and that was not entirely a bad thing, though the problem with that was that there was not enough guidance forthcoming from upstairs. Judge Dyk certainly seemed to prefer bright line rules. Festo, eBay, KSR, and Bilski were mentioned in that vein, as maybe offering something, but certainly not enough. What kind of guideline is "common sense" (KSR), he wondered. A vagary most unbecoming was considering the "totality of circumstances." To Judge Dyk, there's no guidance there.

In the bright line department, Judge Dyk thought that Phillips was a nice piece of work, and that the CAFC en banc Ariad § 112, ¶ 1 was shiny. But his own court hadn't gone far enough. His firm opinion was that claim preambles ought to be a limitation. Well, that would be in the realm of § 112, ¶ 2.

The CAFC is hot on § 112, ¶ 1, but seems to remain stone cold on § 112, ¶ 2, the definiteness requirement. This correspondent asked point blank about the hole you could drive a truck through between the law and Supreme Court precedent requiring "particularly pointing out and distinctly claiming" and the CAFC "insolubly ambiguous" standard. Definiteness was something that Judge Dyk definitely was not going to be definite about, other than blaming the PTO for not demanding definite claims from applicants.

The elephant in the room that Judge Dyk just doesn't seem to see is the need for consistency. The basic patent laws haven't changed since 1952, but the CAFC especially has charted an erratic course for patent practitioners to follow. The problem is not that there hasn't been enough case law, but the exact opposite: there has been too much. The Supreme Court keeps having to reset CAFC meddling. The CAFC desire to tinker, as embodied by Judge Dyk, is part of the problem, not part of the solution.

Judge Dyk bemoaned junk patents granted by the PTO (e.g., playing with a cat using a laser pointer), as well as the growing backlog as symptomatic of an unkept house. He rose to the bait in agreement upon an observation of examination incompetence being rife at the office. This perspective informed his justification for denying the patent office substantive rule-making power, the Chevron deference that every other Federal agency enjoys. He feared how an empowered PTO could become a political pawn, captured by special interests. However in mind, that reality, including that the current director was a 20-year veteran of IBM, went unremarked.

Judge Dyk mused on the lack of patent experience in the Supreme Court. No judge, nor even clerk, there was steeped in it. Getting such a "specialist" judge appointed there struck him as unlikely.

The Solicitor General's office was noted for having an "enormous" influence on which cases the Supreme Court takes, though not necessarily so influential on outcomes. This was tacit acknowledgement of the "country club of government" dynamic. Judge Dyk mentioned that the Solicitor General's office lacked a patent specialist, which was as much a statement of general regard for the PTO as anything.

Judge Dyk bemoaned the reversal rate from district court, but thought the statistics were somehow fudged, that it could be as high as reported. He did mention how the mentoring program of having district court judges sit in on CAFC cases was universally appreciated by those judges, who declared they had caught a clue ("now we get it" was how Judge Dyk put it). The unspoken observation was how many district court judges out there don't get it.

Congress lacked "the ability, or willingness" to pass decent patent law. The Hatch-Waxman act was derided for introducing a nightmare. Judge Dyk gave no indication that he thought the current "patent reform" effort made a lick of sense. His oblique remarks indicated otherwise.

The cost of litigation ("$3 million per case") was thrown in as troubling, but no comprehension was displayed of how the sport of kings was really played. Someone in the audience asked about mediation. Judge Dyk was pleased with the CAFC's mediation program, but acknowledged no real feel for its performance. What was never mentioned is that corporate litigants game the system to grind dime-store inventors into the ground. $3 million is small change when the tab for infringement can run 100 times that. So, the ostensible topic of his talk was lost in the shuffle. That alone spoke volumes to this listener, as well as his bespoken search for legal simplicity in an area inherently complex.