Thursday, January 25, 2007

Is the Supreme Court anti-patent, anti-Federal Circuit?

Timothy C. Meece and Charles I. Miller have an article in the Dec. 06 IPT entitled "Is Federal Circuit Law "Gobbledygook"?

The article presents text from oral argument, and one won't find discussion of Kotzab, the precedential CAFC case relied upon in KSR v. Teleflex. Quick question: which previous CAFC (CCPA) cases on obviousness were mentioned in oral argument in KSR? [Kahn, Alpha, Diestar (issued "within the year"), Winslow, Dystar, Dembiczak (garbage bag/pumpkin)]

Separately, Patently-O has some text from Professor Merges:

The wedge between the pharma/biotech/manufacturing and the software/electronics views of the patent world is on one level just a normal development in a vibrant and growing field. But beyond a certain point, it is not a good sign. This is especially true when it is combined with the view that the current Supreme Court is anti-patent.


My reading of the evidence – including eBay and its aftermath – is that this is a pro-business Court. I think the Supreme Court has created, overall, a very moderate body of patent law in recent years.

These dual complaints (“the Federal Circuit needs a lot of work” and “The Supreme Court is anti-patent”) make the patent community sound incredibly negative.

To summarize: I believe the Court looks at patent cases from a centrist, inclusive, business-oriented perspective, which is a far cry from saying they are anti-patent. Criticism of individual patents, as in the KSR oral argument, or the dissent from the dismissal of certiorari in Metabolite does not in my mind reveal an underlying anti-patent bias. It does reveal a concern with the quality of some individual patents – which is a different concern.

[IPBiz notes that CJ Roberts talked about the Federal Circuit never seeing a patent they didn't like at page 42 of the KSR transcript.]

But of course, in this the Court is not alone. Although it is tempting to say that those who are “anti-bad patents” are really in some sense “anti-patent,” I would disagree. As this is the core of the contentious divergence between pharma and electronics mentioned earlier, I turn to that issue now.


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