October 26, 2012
Cruel Hoax Reexamined
Under the current regime, a patent grant is always provisional. Most any patent can be invalidated by a competent party with deep pockets - deep enough to tear apart the slight edge of innovation that a patent claims; if not by fact, by confusion. With an erstwhile IBMer at its helm, the USPTO is open for business to help large corporations kill small-fry patents. Even if a patent determined valid by a court ruling can still be invalidated through reexamination at the PTO. Res judicata has a hollow ring.
October 23, 2012
The concept behind rule of law is that the outcome of disputes may reasonably be expected to go a certain way. The upshot of such consistency is to limit legal action between parties, as the outcome, according to the law, is fairly clear. Conversely, patent law under the current court regime bears no resemblance to rule of law. Instead, conflicting precedents allow case-by-case bias to be exercised. A corrupt incompetence is pervasive. The failure of the CAFC to perform its basic function is highlighted in Flo Healthcare Solutions v. USPTO (CAFC 2011-1476). In sum, as a former USPTO commissioner put it, the patent system has become "a cruel hoax."
October 9, 2012
The CAFC went tribal in Beer v. United States (2010-5012). The CAFC convened en banc to give judges within its purview cost-of-living pay increases, capped by long-winded rationalization. The gall was too much for Judges Dyk and Bryson, who dissented, observing that the ruling runs against both statute and Supreme Court precedence. "Under the Will's bright-line vesting rule [by SCOTUS], Congress was free to "abandon" a statutory formula and revoke a planned cost-of-living adjustment ("COLA"), as long as the revoking legislation was enacted into law before the COLA 'took effect.'" This same disregard for rule of law is regularly visited upon patent cases, which are routinely decided by bias.