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> And when the Supreme Court overturns them, the next case relying on Supreme Court precedent inevitably goes to the Federal Circuit, which has proven very will

by ABCLAW 8y ago

> And when the Supreme Court overturns them, the next case relying on Supreme Court precedent inevitably goes to the Federal Circuit, which has proven very willing to engage in sophistry to issue a new binding precedent that clearly is the opposite of what the Supreme Court meant. I get what you're trying to say, but I think your point at the end regarding the Federal Court trying to go behind the Supreme Court's back is false. The Federal Court's decisions often propose a framework for patentability, then the Supreme Court rejects the framework without then building one of their own. When the next big patentability case comes up, the Federal Court tries again with something new, then the Supreme Court says "No, try again". The Federal Court frameworks are often pretty mediocre, but if the Supreme Court had an actual policy direction in mind, it is fully competent to just develop and state the test and put this area to rest. They haven't because they can't. Every framework sucks, because the patentability concept is way too broad to be addressed in a single test. So then the USPTO puts out their internal instruction, and after we've had a 4 link chain of broken telephone, we hit the point where 'stupid patent x got in under the new "Case X" framework and the Supreme Court feels the need to tell everyone they're stupid, without proposing a solution. Functionally, all this game of framework tennis does is make the field absurdly complicated, but lets not blame that on the Federal Court alone. There's plenty of other things we can blame them for. Like how the fuck did the former chemist judges on the court not know what covalent bonds were? !@#$!#%$@#$%

btilly 8y ago
Well obviously I don't agree. First of all from https://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideJan2010_Hofer.authcheckdam.pdf https://www.americanbar.org/content/dam/aba/migrated/intelpr... you can see that a higher portion of cases escalated from the Federal Circuit get reversed than any other federal circuit. Secondly from https://www.scotusblog.com/2018/12/empirical-scotus-the-heightened-importance-of-the-federal-circuit/ https://www.scotusblog.com/2018/12/empirical-scotus-the-heig... we see that over time the Supreme Court has been devoting more and more of its limited energy to overseeing the Federal Circuit. Now my statement was the reverse, not about the Supreme Court's reaction to the Federal Court, but about the Federal Court's treatment of Supreme Court decisions. Searching for a reference on that one way or the other, the first that I found was https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2054&context=btlj https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art... which includes this passage: There have been no quantitative empirical studies comparing Federal Circuit disobedience of Supreme Court decisions to disobedience by other circuits,(177) or assessing whether the Federal Circuit is more likely to defy the Supreme Court in its attributed area of expertise (patent law) than in any of the other cases that make up its docket—both of which are predicted by this model. Nevertheless, qualitative evidence suggests that this is the case. Indeed, Chief Justice Roberts has remarked on the Federal Circuit’s unusual behavior, noting that it seemed an exception to the rule that lower courts generally follow Supreme Court precedent. (178) An analysis of Federal Circuit case law reveals a pattern of resistance to implementing Supreme Court decisions overruling Federal Circuit precedent—a pattern consistent with the model’s prediction of defiance to decisions by generalist superiors. (179) You'll have to believe that if I had first come up with something saying that they are properly deferential, I would have been honest. But as it is I'm going to conclude that the Chief Justice of the Supreme Court knows what he is talking about, and with the analysis of decisions that that article cites was based on something real - the Federal Circuit is in fact undermining Supreme Court decisions. And the Supreme Court's reaction has been to take on an ever increasing share of cases from that court, and to overturn over 80% of them - many in unanimous decisions. Incidentally your user name makes me curious. Would you happen to have a professional interest in the law? My status is firmly "curious geek".
- ABCLAW 8y ago
  Re: Last line. Yep. I do. In fact, the some of the cases your articles refer to directly refer to my amicus curiae contributions. The Federal Circuit was created, in part, to create certainty in patents. They keep trying to make frameworks, but they've all got issues. The Supreme Court doesn't like that they have issues, and blows up their rulings, but does not put anything affirmative back in place. So, functionally, what we get is a cycle of the Federal Court building their little sand castle on the beach, and the Supreme Court coming over to stomp on the sand castle because it has flaws. The fact that the Supreme Court stomps more frequently, or the fact that almost all of the sand castles are destroyed has no bearing on whether or not the entire cycle of destruction is warranted. If the Supreme Court had a better set of rules, they have plenty of judicial tools to make those rules known to the USPTO and lower courts. But they don't.
  - dragonwriter 8y ago
    > The Federal Circuit was created, in part, to create certainty in patents. It's probably time to admit that was a bad idea and that the way every other federal legal issue gets to the certainty provided by maturity (by being handled in the various geographical circuits which either evolve a consensus view or force the Supreme Court to settle a divergence with the benefit of competing frameworks from below, is, if not ideal, at least a better thing for patents than only having one appellate circuit.
  - mjevans 8y ago
    Or perhaps to admit that the concept is trying to build a skyscraper out of raw sand and that the very concept needs to be revisited. My own /personal/ views on the IP related matters can be summarized: Trade Mark(s): Good, keep forever as long as the presence in commercial offerings is refreshed on an ongoing basis; limit to /commercial/ for profit enforcement. Copyright: Public domain needs to happen, a LOT faster. Renewal should need to be active and exponentially more expensive. Automatic copyright probably needs to expire after around 10 to 20 years. (I favor rounding down to the year and using 11 years for first registration, and a multiple of 5 years for rounds there after.) Patents: Please prove me wrong that they aren't effective and are a myth. Processes of how to do things often come down to engineering and math; if given the same goal a solution is likely to be similar at it's core as for any given problem there is probably an ideal bound and variations of effort will produce similar results or results optimized slightly to different circumstances.

by ABCLAW 8y ago

btilly 8y ago

Well obviously I don't agree. First of all from https://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideJan2010_Hofer.authcheckdam.pdf https://www.americanbar.org/content/dam/aba/migrated/intelpr... you can see that a higher portion of cases escalated from the Federal Circuit get reversed than any other federal circuit. Secondly from https://www.scotusblog.com/2018/12/empirical-scotus-the-heightened-importance-of-the-federal-circuit/ https://www.scotusblog.com/2018/12/empirical-scotus-the-heig... we see that over time the Supreme Court has been devoting more and more of its limited energy to overseeing the Federal Circuit. Now my statement was the reverse, not about the Supreme Court's reaction to the Federal Court, but about the Federal Court's treatment of Supreme Court decisions. Searching for a reference on that one way or the other, the first that I found was https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2054&context=btlj https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art... which includes this passage: There have been no quantitative empirical studies comparing Federal Circuit disobedience of Supreme Court decisions to disobedience by other circuits,(177) or assessing whether the Federal Circuit is more likely to defy the Supreme Court in its attributed area of expertise (patent law) than in any of the other cases that make up its docket—both of which are predicted by this model. Nevertheless, qualitative evidence suggests that this is the case. Indeed, Chief Justice Roberts has remarked on the Federal Circuit’s unusual behavior, noting that it seemed an exception to the rule that lower courts generally follow Supreme Court precedent. (178) An analysis of Federal Circuit case law reveals a pattern of resistance to implementing Supreme Court decisions overruling Federal Circuit precedent—a pattern consistent with the model’s prediction of defiance to decisions by generalist superiors. (179) You'll have to believe that if I had first come up with something saying that they are properly deferential, I would have been honest. But as it is I'm going to conclude that the Chief Justice of the Supreme Court knows what he is talking about, and with the analysis of decisions that that article cites was based on something real - the Federal Circuit is in fact undermining Supreme Court decisions. And the Supreme Court's reaction has been to take on an ever increasing share of cases from that court, and to overturn over 80% of them - many in unanimous decisions. Incidentally your user name makes me curious. Would you happen to have a professional interest in the law? My status is firmly "curious geek".

ABCLAW 8y ago
Re: Last line. Yep. I do. In fact, the some of the cases your articles refer to directly refer to my amicus curiae contributions. The Federal Circuit was created, in part, to create certainty in patents. They keep trying to make frameworks, but they've all got issues. The Supreme Court doesn't like that they have issues, and blows up their rulings, but does not put anything affirmative back in place. So, functionally, what we get is a cycle of the Federal Court building their little sand castle on the beach, and the Supreme Court coming over to stomp on the sand castle because it has flaws. The fact that the Supreme Court stomps more frequently, or the fact that almost all of the sand castles are destroyed has no bearing on whether or not the entire cycle of destruction is warranted. If the Supreme Court had a better set of rules, they have plenty of judicial tools to make those rules known to the USPTO and lower courts. But they don't.
- dragonwriter 8y ago
  > The Federal Circuit was created, in part, to create certainty in patents. It's probably time to admit that was a bad idea and that the way every other federal legal issue gets to the certainty provided by maturity (by being handled in the various geographical circuits which either evolve a consensus view or force the Supreme Court to settle a divergence with the benefit of competing frameworks from below, is, if not ideal, at least a better thing for patents than only having one appellate circuit.
- mjevans 8y ago
  Or perhaps to admit that the concept is trying to build a skyscraper out of raw sand and that the very concept needs to be revisited. My own /personal/ views on the IP related matters can be summarized: Trade Mark(s): Good, keep forever as long as the presence in commercial offerings is refreshed on an ongoing basis; limit to /commercial/ for profit enforcement. Copyright: Public domain needs to happen, a LOT faster. Renewal should need to be active and exponentially more expensive. Automatic copyright probably needs to expire after around 10 to 20 years. (I favor rounding down to the year and using 11 years for first registration, and a multiple of 5 years for rounds there after.) Patents: Please prove me wrong that they aren't effective and are a myth. Processes of how to do things often come down to engineering and math; if given the same goal a solution is likely to be similar at it's core as for any given problem there is probably an ideal bound and variations of effort will produce similar results or results optimized slightly to different circumstances.