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What explains the Federal Circuit's relentless pro-patent bias? One obvious theory is what economists call "regulatory capture": the theory that over time, publ

What explains the Federal Circuit's relentless pro-patent bias? One obvious theory is what economists call "regulatory capture": the theory that over time, public officials will come to identify with the interest groups they are supposed to be supervising. The theory is usually applied to regulatory agencies in the executive branch (think FCC commissioners becoming Comcast lobbyists), but the theory seems to fit the Federal Circuit as well. Patent attorneys tend to have a pro-patent bias, and these attitudes seem to have rubbed off on Federal Circuit judges. Most obviously, a significant minority of Federal Circuit judges have been patent lawyers themselves, whereas judges on other courts almost never come from a patent law background. But beyond that, the heavy load of patent cases on the court's docket means that the judges of the Federal Circuit are constantly interacting with patent lawyers. In addition to hearing their arguments in the courtroom, they read the same patent law publications as the lawyers, hire young patent lawyers to clerk for them, and are invited to speak at events organized by the patent bar. Moreover, the prestige of the Federal Circuit itself is directly tied to the prominence of patent law in the American legal system. If the Federal Circuit had followed the stricter rules in place before the court was created, patent law might have remained a legal backwater, receiving little attention from either the legal profession or the general public. That, of course, would have made the Federal Circuit a less prestigious place to work. (From [0].) "Corrupt" doesn't seem like too strong a word to me. And yes, on top of that, they know very little about software. [0] http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appeals-court-wrecked-the-patent-system/ http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea...

rayiner 13y ago
I don't disagree with that, but I'd hardly call it corrupt. Its no different than how a lot of people in SV hang out in the same circles, listen to the same people, read the same sources, and develop a distinct way of looking at things. Case in point: I think there is a strong group think in SV that creates an idiosyncratic view of the economic importance of small startups. The fact that other people in other industries can be influenced by groupthink that causes them to maybe overvalue patent protections is hardly a sign of corruption.
- ScottBurson 13y ago
  They have a personal interest, albeit indirect, in tending to decide in favor of patentees. They ignore the Supreme Court's repeated (if somewhat muddled) attempts to get them to take a more balanced view. I will grant that they're probably not cynically corrupt: they probably sincerely believe they're doing the right thing for the country. But the convergence of this belief with their personal interests is just a little too convenient.
  - rayiner 13y ago
    In terms of direct personal interest, it's hard to get someone less interested than a federal COA judge. They have life tenure and a Constitutionally guaranteed six figure salary. They typically serve for life and it is exceedingly rare for them to ever return to private practice. They also have a direct incentive to make patentability more difficult: it means more work for them at no additional pay. Do they have an indirect interest in making themselves more relevant? Possibly, but so does any court. Yet the overwhelming trend over the last few decades has been for the courts to cede territory. Strongly favoring arbitration, giving broad interpretation to bars like standing, etc. Most people worry about the opposite problem: courts declining to exercise jurisdiction in the face of the other two branches. Calling this "corruption" stretches the word to the point it loses any meaning, and also deeply confuses the causation. The Federal Circuit doesn't skew towards aggrandizing patent law because they somehow want to benefit their former colleagues in practice (and some of the strongest advocates like Judge Reader never even practiced!) Rather, people who strongly believe in patent protections self-select into becoming Federal Circuit judges.
    - ScottBurson 13y ago
      All right, point taken. But I still think a strong word is called for, and I don't have a ready alternative. Maybe "renegade", the term Scalia used for the Eastern District of Texas, will do. "Ideological" doesn't quite seem strong enough to me, though it's getting there.

rayiner 13y ago

I don't disagree with that, but I'd hardly call it corrupt. Its no different than how a lot of people in SV hang out in the same circles, listen to the same people, read the same sources, and develop a distinct way of looking at things. Case in point: I think there is a strong group think in SV that creates an idiosyncratic view of the economic importance of small startups. The fact that other people in other industries can be influenced by groupthink that causes them to maybe overvalue patent protections is hardly a sign of corruption.

ScottBurson 13y ago
They have a personal interest, albeit indirect, in tending to decide in favor of patentees. They ignore the Supreme Court's repeated (if somewhat muddled) attempts to get them to take a more balanced view. I will grant that they're probably not cynically corrupt: they probably sincerely believe they're doing the right thing for the country. But the convergence of this belief with their personal interests is just a little too convenient.
- rayiner 13y ago
  In terms of direct personal interest, it's hard to get someone less interested than a federal COA judge. They have life tenure and a Constitutionally guaranteed six figure salary. They typically serve for life and it is exceedingly rare for them to ever return to private practice. They also have a direct incentive to make patentability more difficult: it means more work for them at no additional pay. Do they have an indirect interest in making themselves more relevant? Possibly, but so does any court. Yet the overwhelming trend over the last few decades has been for the courts to cede territory. Strongly favoring arbitration, giving broad interpretation to bars like standing, etc. Most people worry about the opposite problem: courts declining to exercise jurisdiction in the face of the other two branches. Calling this "corruption" stretches the word to the point it loses any meaning, and also deeply confuses the causation. The Federal Circuit doesn't skew towards aggrandizing patent law because they somehow want to benefit their former colleagues in practice (and some of the strongest advocates like Judge Reader never even practiced!) Rather, people who strongly believe in patent protections self-select into becoming Federal Circuit judges.
  - ScottBurson 13y ago
    All right, point taken. But I still think a strong word is called for, and I don't have a ready alternative. Maybe "renegade", the term Scalia used for the Eastern District of Texas, will do. "Ideological" doesn't quite seem strong enough to me, though it's getting there.