Tonight, I just finished reading Hasting Law Professor Robin Feldman's article Coming of Age for the Federal Circuit, which discusses the patent law tug-of-war that is going on between the US Supreme Court and the Federal Circuit.
Here's the abstract:
"This has been a watershed year for the Federal Circuit, with the Supreme Court granting cert. in more patent cases than any term since the Circuit’s creation in 1982. Moreover, in case after case this year, the Justices soundly and unanimously rejected the Federal Circuit’s logic.
Some attribute the tension between the Federal Circuit and the Supreme Court to a clash between rules and standards, but that view misses the heart of what is occurring. Rather, a strong message echoes through the six Supreme Court decisions. It is a message about restraint, about carefully constructed logic, and about coming into the fold of judicial decision-making. This is a coming of age for the Federal Circuit — or at least the Supreme Court seems determined to coax, cajole and, when necessary, club the Federal Circuit into coming of age.
This article examines the messages evident in recent Supreme Court decisions and evaluates whether the Court appears to be gaining ground. Although some indications are positive, others suggest that the Federal Circuit may not be entirely ready to relinquish its role as the judiciary’s enfant terrible."
The article is thought provoking, but if the Federal Circuit is the "terrible child," the Supreme Court may just be that "parent" who issues vague orders then "punishes" the child for "disobedience" at least on the application of the abstract idea. The Supreme Court on patent eligibility law (e.g., Alice v. CLS Bank) is unclear and that is why many are struggling with it. It is easy to blame the Federal Circuit for being recalcitrant, but the early Supreme Court patent eligibility cases have plenty of flaws. For example, Benson seems to not understand the claims recite hardware such as registers and mask bits and that the patent owner stipulated that the hex to binary conversion algorithm was executed in special hardware. Justice Douglas, who never did find that patent he liked, ignores the hardware and asserts the claim totally preempts the algorithm. In the end, although we are talking about capable judiciary, it may be time to note Benson said software patent protection (or not) is a policy question best decided by Congress.
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