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Daniel B. Ravicher

Daniel B. Ravicher

Posted: December 1, 2010 02:24 PM

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.