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October 23, 2012

Cruel Hoax

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."

Judge Plager:

[V]arious of our cases seem to apply one or the other of two (possibly three) inconsistent standards, mostly without acknowledging that the other standard exists. It is difficult to know which of these standards is the operative one.

Judge Newman:

This court is charged with assuring, through judicial process, that correct patent law is consistently and correctly applied, in the administrative agencies and in the courts. Our judicial obligation is not merely of philosophical concern, but of critical economic consequence.

The Federal Circuit Court of Appeals was created so that all patent appeals from the district courts throughout the nation, together with all appeals from the Patent and Trademark Office and the International Trade Commission, will be resolved in a single tribunal, under a single national law. However, as this case illustrates, this goal is being undermined by a hodgepodge of procedural rulings, inferences, and presumptions that ignore the routine mechanisms of patent examination, that confound the standards of review, and that misapply the principles of administrative deference. The loser is the technology community, whose incentive for innovation and commerce the patent system serves. As former Commissioner of Patents and Trademarks Donald Banner testified in supporting formation of the Federal Circuit:

Unless the inventor can have reasonable certainty, that, once granted, his patent is (1) valid and (2) enforceable, then the rights conveyed by a patent are illusory, the government has defaulted on its responsibilities under the patent contract, the patent is worthless, and ultimately, the patent system becomes a cruel hoax.

Court of Appeals for the Federal Circuit: Hearings Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the Comm. of the Judiciary, 97th Cong. 177-78 (1981).

Posted by Patent Hawk at October 23, 2012 9:23 PM | Case Law