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October 10, 2011
Duplicitous
In
a recent speech,
CAFC Chief Judge Randall R. Rader shows himself as rather brainless in his
duplicity. He speaks of equal justice while assailing parties that he would
readily show bias to. He claims to be inspired by juries, but would like to cut
them out of the process. He worries about the cost of patent litigation, but his
reform proposals would do little about it. He values "the individuality and
independence of the judges" while making no mention of the travesty that his
court has produced by rending rule of law into abject corruption by
self-contradiction. The undercurrent to Rader's remarks are
that he is all in favor of illicit bias.
On rules & practices: "Much of the value of our US system of adjudication lies in the individuality and independence of the judges themselves." Rader then goes on to the need for "an announced and dependable set of procedural rules that all parties understand in advance," skipping over that case law in his court has become a cacophony of self-contradiction, and nowhere mentioning the essential need for a consistent body of case law to guide jurisprudence.
People advertise what they are not. Rader makes that point early on: "We need to equalize the playing field for plaintiffs and defendants, whether they are home grown or foreign, a solo garage inventor or a Fortune 100 Company." Out of the other side of the mouth: "All patents and all patent cases are not created equal!" "[T]he court may... tailor its timing and procedures to make sure a billion-dollar case gets a "billion-dollar" process and a thousand-dollar case gets its due as well." So much for "an announced and dependable set of procedural rules."
On judges & juries: "The juries also inspired me." (Referring to East Texas juries.) Let's cut them out whenever possible - "In these vast technical lawsuits, summary judgment is the key to efficient resolution of disputes."
On conveniencing corporate defendants: "File cases or find venues that best suit the convenience of parties and logical distribution of these important cases. Moreover the trend towards an excess number of parties also unnecessarily multiplies the complexity of already-complex litigation." Which is to say that courts should disfavor patent-holding plaintiffs who assert against many corporations. These are what Rader calls "trolls," which he defines as "any party that attempts to enforce a patent far beyond its actual value or contribution to the prior art." But, by that definition, there is no way to define a troll until trial. What Rader is really doing is encouraging judges to exercise their bias.
Rader mentions "grasshoppers." "A grasshopper is any entity which refuses to license even the strongest patent at even the most reasonable rates." That assessment cannot be made until after summary judgment for invalidity has been made, at the earliest.
Which goes to the point of judicial procedural reform that Rader never gets to. To ward off "trolls," the first action for courts, before the incredible expense of discovery, should be claim construction, followed by determining validity; that is, entertaining summary judgment of invalidity. That would put the cards on the table quickly at minimal cost. Then a judge would know of "trolls" and "grasshoppers." As it is, patent litigation is being used by large corporations to bludgeon small competitors by the cost of litigation. Judge Rader shows no recognition of this egregious situation.
Rader makes no such sensible proposal to shortcut to the critical determinations at minimal expense to those threatened by patents, over 90% of which are worthless grants by an incompetent bureaucracy. For a guy who supposedly gives these issues a lot of thought, the vacuity of Judge Rader is quite telling.
Posted by Patent Hawk at October 10, 2011 6:27 PM | The Patent System