December 27, 2012
Outside the Box
The heart of the problem with patents lies with obviousness. Before Obzilla came to town, some scintilla of indication in the prior art had to exist before a claim could be considered obviousness. KSR v. Teleflex reset obviousness calibration to incorporate subjective evaluation; to read between the lines of prior disclosure. No longer being beholden to facts invariably opened the door to hindsight reasoning and adjudication bias, which has been a large part of the legacy of KSR. That withstanding, the problem remains how as to how far "common sense" and ethereal predictability should go as a matter of law. In C.W. Zumbiel v. Kappos, a CAFC panel doesn't go far enough, as the dissent points out.
Hal Wegner reports that "several dozen - or scores of hundreds - of patent applications remain pending" that predate the 1995 GATT treaty. If granted, these patents would have a 35-year term from filing date (20 is nominal), lasting to 2030. IPO Daily News reports that the patent backlog remains unchecked, holding steady at 1.25 million pending applications for the past three years. After an examiner hiring surge this past year, the only improvement is time to first office action.
December 17, 2012
Dumb judges have been dumped on the CAFC for decades. The few decent ones are fed up. Old saws Dyk and Clevenger are called out by a dissent from Judge Reyna, the penultimate member, over an anti-dumping appeal from a Chinese company.
December 11, 2012
The overbearing bumbling of the CAFC is ceaseless. In Nissim v. Clearplay (CAFC 2012-118), a panel majority reverses a district court's dismissal of overseeing a settlement as moot, while the dissent points out that "the district court was never, and is not now, obligated to retain jurisdiction to enforce the settlement agreement. This is particularly true here because the court determined that continuing to assert jurisdiction would not foster judicial economy." The majority opinion is rife with specious logic, misapprehension of fact, bias, and has no meaningful basis in law. For example, after pointing out "that the [district] court was exasperated with the parties," the CAFC majority claims that its own opinion "does not depend on a court's opinion of the litigants or of counsel." How disingenuous: to assert that something which bothers does not matter a whit; especially when the upshot of the ruling is to simply remand for further annoyance, while reminding the district court that it may do as it pleases, as long as it minds its tone.
December 8, 2012
Highmark v Allcare (CAFC 2011-1219) hit a low mark for CAFC squabbling. There was an en banc ruckus over rehearing an exceptional case; specifically, to what degree deference is given to district court discretion on questions of law. The majority denied rehearing, while CAFC power mongers, including Chief Judge Rader, would give a district court "no deference." Such is the fractious fiction called "rule of law." Such petty disputes like this simmer for decades. This is a simple issue that should have been settled long ago.
December 4, 2012
Deere sued Bush Hog for infringing 6,052,980, claiming a rotary cutter for tilling soil. Bush Hog got off the hook with an ersatz claim construction leading to non-infringement by way of denying the doctrine of equivalents. On appeal, the CAFC gave a tutorial on the doctrine while rototilling the district court's summary judgment.