Saturday, December 01, 2007

The CAFC portrayed as the "secret circuit"

Joshua Spivak reviews Bruce D. Abramson's The Secret Circuit
The Little-Known Court Where the Rules of the Information Age Unfold
and writes:

Abramson takes the reader back to the pre-reform period, where he shows how a focus on making patents easy to get yet difficult to enforce - plus a crazy quilt of appellate laws across the nation, which allowed companies to seek out courts that they knew would not uphold a patent - helped diminish the importance of intellectual property. While the federal government owned a huge number of patents, created by professors and universities using federal grant research, these patents were rarely turned into viable products, thanks to bureaucratic problems. And because of the law, universities were unable to make money from their extensive scientific-research portfolios developed through those federal grants.

Josh, better check out those pre-Bayh-Dole numbers or provide a definition of what you mean by "huge."

Also, one has: By allowing one court to be the penultimate arbiter of patent decisions (the Supreme Court, of course, can and does occasionally overrule the appellate circuit's decisions), the law brought order and predictability to patent law. Perhaps Josh needs to look at some of Judge Newman's writings.

And, yes, patent reform (HR 1908/S1145) comes up:

Since the debate is continuing - in fact, the House of Representatives recently passed a major overhaul of the patent law - Abramson is not just looking to provide a historical explanation of the court and patent policy; he also wants to test whether the patent policy is one that meets the country's goal: to push forward innovation and propel economic growth. He uses an engineering concept known as "black-box testing," where he starts out with the idea of what the court is supposed to accomplish, and then tests the current law and results to see if the policy is being achieved. It originally seems needlessly complicated, but as a literary device, it is surprisingly effective, constantly bringing the reader's attention back to the underlying goals of the patent system, rather than simply accepting the current state of the law and showing the tactical arguments businesses use to push the laws to their advantage.

Hmmm, how about the tactical arguments used by the Coalition for Patent Fairness?

Josh also notes: The other minor difficulty is the title. In theory, Abramson is correct, as the Federal Circuit Court is undoubtedly a secret to most Americans. Of course, since a 2003 survey found that 65 percent of Americans could not name a single Supreme Court justice, this is not exactly a shock. But this is small quibble.

One suspects more than 65% of readers of IPBiz can name at least one justice AND know what the Federal Circuit does.

In passing, recall how Fortune reviewed the Bayh-Dole Act:


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