As a devout conservative, one of the things I despise the most are judicially activist courts. Unfortunately for me, my legal field is dominated by arguable one of the most judicially activist courts in the country, the Court of Appeals for the Federal Circuit (CAFC), which was bought by patent holders in the early 1980s to provide them with a literal home court advantage in all appeals of patent cases. Unlike almost all other federal cases, which get appealed to regional Courts of Appeals geographically distributed throughout the country, all patent cases get sent to the CAFC in Washington, DC. Many have argued this is a very harmful result, both substantively and procedurally, but it is what it is, at least for now.
Since its first session, the CAFC expanded patent law to the benefit of patentees without hesitation and without any legitimate consideration of the devastatingly negative effects on society over patenting can have. This expansion was done with admitted policy motives, and was not bounded by the relevant statute, the Patent Act, as judicial decisions should be. The CAFC judges, at least those originally appointed to the court, included those who had been involved with the legislative process creating the court, and they felt their mandate was to create patent law based on their own concepts of proper patent policy, which of course was shaped by the corporate and legal lobbyists who had most assuredly schmoozed them and their Congressional bosses. The resulting sense of entitlement held by CAFC judges in the 80s and 90s to legislate from the bench produced one of the most violent expressions of judicial activism ever, and the results have been predictably abhorrent.
Patent attorneys are generally too corrupted by being in favor of expansive patent policy (because that makes their services more valuable) and/or too fearful of retaliation to decry the CAFC and its practice of judicial activism. For better or worse, the net result has been that the Supreme Court has had to repeatedly step in and slap down the CAFC when its expansionist policy has gone too far. Cases like eBay, MedImmune, KSR, Quanta and many others from the 2000's are all examples of the Supreme Court having to take time away from other important issues of social policy to reverse the CAFC's judicially activist opinions (often unanimously). This is the right result, but not the most efficient process for society. So, it is with only slight satisfaction that I report the Supreme Court yesterday accepted another patent case. This is another instance where the CAFC went far beyond merely interpreting the patent statute in order to benefit patentees and harm the public. I am confident it will be another instance where the Supreme Court will correct the CAFC.
At least he linked to an article that provides minimal information about the Microsoft v. i4i case. Clearly, he's in the Microsoft camp since i4i won in two lower courts. Unfortunately, this article isn't convincing without an explanation as to why.
To his credit, the information about the CAFC was informative.
In eBay it related to the right of patentees to get injunctions. The CAFC said automatic, despite the statute saying courts "may award injunctions" and common law requiring several factors be considered. MedImmune related to the right of the public to challenge patents. The CAFC said only someone who was on the verge of being sued could challenge a patent, although the Declaratory Judgment Act says any controversy, even not on the verge of suit, is sufficient to allow parties to challenge patents in court. The KSR case involved the CAFC reading into the Patent Act's rule against allowing obvious patents additional requirements for the challenger of a patent to prove it is obvious. In Quanta, the CAFC had eliminated the first-sale doctrine for patents, even though it is more than well established for other forms of intellectual property.
In i4i, it actually sickens me to be siding with Microsoft, as I am a devout free software advocate. However, the CAFC's requirement that a challenger to a patent prove it is invalid with "clear and convincing evidence" is radically higher than what the statutory standard requires, which is mere preponderance of the evidence.
With the MS v i4i case, the issue is narrow - how to treat evidence as to validity when the evidence was not before the admin body (i.e., the examiners). The SCt will tweak the patent system, as it should. I'd rather see them tweaking the financial system before it's too late. This is really about institutional competency.
Your comments about the Office of the Comptroller of the Currency supports my general feeling about the Patent Office; government is not to be trusted. People within the government may very well be trustworthy, and in fact my parents were life long government employees. But, the susceptibility of all branches of government to be subject to illicit influence at leadership positions, undermines any support for institutional credibility.
Your comment about the i4i case could not be more wrong. The issue of how much evidence a challenger to a patent must come forward with in order to prove the patent is bogus is not narrow. It will categorically affect all patent cases and is an issue of extreme importance. It's like saying putting people in jail only if they're proven guilty by most of the evidence as opposed to "beyond a reasonable doubt" is a narrow issue. It isn't. The rules of burden are outcome determinative in the vast majority of legal cases, and patent cases are no different.
http://www.w3schools.com/xml/default.asp - Here is a good example of XML and it's simplicity
I'm a computertech so I understand what is being fought over in this case and it is absurd.
Right, and I'll bet the author is equally appalled by socialism.
Unless, of course, said activism and socialism advances the corporate agenda.
Generations, will wonder what the hell, we were doing.!