Top Patent Judge Steps Down Over Ethics Scandal, Highlighting How CAFC Has Become Too Close To Patent Lawyers
from the total-failure dept
For many years we've written about the serious problems with CAFC, the court of appeals for the federal circuit, which is better known as the appeals court where all patent cases go. CAFC was created in the early 1980s under the belief that a more "specialized" court could better handle the more complicated technical issues related to patents. But what really happened is that it basically built a club of patent-friendly judges, who spent nearly all of their time with patent lawyers, and thus took an increasingly patent-friendly view of the world. That one of the key original judges on CAFC was also a long-time well known patent lawyer who almost single-handedly wrote the 1952 Patent Act, seemed to set the tone that has remained throughout the court's existence.Just a few years ago, Tim Lee highlighted how the two most recent Chief Judges at CAFC, Randall Rader and Paul Michel, were too close to patent lawyers, and had formed a friendly sort of club:
Rader and Michel's perspectives are likely skewed by the fact they spent their time on the bench surrounded by patent lawyers (who by definition work with firms that have the resources to hire patent attorneys). For the typical software-producing firm, patent lawyers are simply too expensive. Most firms never get patents, and they typically settle patent claims rather than taking them to court. As a result, Judges Michel and Rader rarely hear from smaller firms for whom the patent system is nothing but a burden.That point has apparently been driven home loud and clear over the past few days. The WSJ revealed that the CAFC is in the midst of an ethics crisis after it had to reissue two rulings after Rader recused himself, which he did after the rulings had been issued, and only once it came out that he not only sent a laudatory email to a patent lawyer practicing before the court, but even urged that lawyer to share the letter, a move that would likely help that lawyer sign up more clients.
As all of this has come out, Rader has now stepped down as the Chief Justice and issued an apology.
Even though he's now stepping down (though remaining on the court -- just not as Chief Judge), this should, once again call attention to the fact that CAFC is an experiment that failed and should be done away with entirely. Rather than creating a specialized court that understood technical issues, it created a captured court that massively changed patent law to favor patent holders and patent abusers. The fact that the Supreme Court has regularly struck down CAFC rulings as nonsensical is one sign. The fact that its Chief Judge thinks its okay to send buddy-buddy "good job" emails to lawyers practicing before the court is just the nail in the coffin of how far gone the court is.
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Filed Under: cafc, patent lawyers, patents, randall rader
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What... just 1?
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now if only
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wait I'm incorrect... you succeed
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Punishment
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eh
Even the more discreet judges surely have opinions about the attorneys they work with. It was unwise of Rader to not keep his opinion to himself, but not really proof of corruption.
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Re: eh
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Re: Re: Re: eh
Second, the incessantly repeated meme manifests not a whit of understanding about what the term "due processes" comprises. Surely a more authoritative source can be found and studied than the lid of a cereal box.
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It is even more arguable that those who began the incessant repetition of "hate of copyright law" were the ones who initiated this whole debacle in demonstrate their lack of understanding as to what copyright law enforcement is, instead of crowing support for litigation against the elderly and disabled.
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The CAFC
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Re: The CAFC
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Re: Re: Re: Re: eh
Why, because I disagree with you? and really I don't need Mike to think for me. Nor do I need you.
"Many negative statements about the CAFC have spewed forth here over the years from TD principals, statements that upon close examination had no underlying basis in fact."
[citation needed]
"Assuming arguendo that Rader sent the alleged email, a lapse in judgment from a well respected jurist does not compel the conclusion that fixes are in, judges too cozy with counsel, etc."
It contributes more evidence of the problem of a predisposed bias.
"At one time or another I have met or dealt with most of the court's members, and not once did I detect even the slightest hint that our dealings were anything other than what transpires in courtrooms around the US between judges and lawyers as triers of law and fact and as advocates."
Since you're just an AC I have no way of verifying who you are, what your conflicts of interest may be, or whether or not you are likely telling the truth. For all I know you could be telling a lie. I could, however, verify the identify of Mike and a good history to go along with that. So who should I trust more? Some AC or Mike?
"If something truly untoward was documented I would not protest the incident being reported."
and what should I care what you, an AC, personally think constitutes something 'untoward' and what you would or would not protest?
"Here, however, it seems that situations are noted, and then twisted in ever increasingly misleading fashion so as to try and convey the impression to TD readers that the fix is in. This is not news reporting. This is what rags at grocery line checkouts do as a part of their business models."
Or maybe it is your comment that's taking a post and twisting it in a misleading fashion so as to try and convey the impression that TD is the one twisting the situation.
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Re: The CAFC
When the criticism is that the patent system hinders innovation then the number of patents is not a good metric to determine the extent that patents hinder or help invention and innovation.
and if patents were a good thing the number of engineers, scientists, and innovators - and not lawyers - would have spiked. The number of lawyers spiking, taking away from the time and resources of engineers, is actually a bad thing. and that's partly why many of these professions are going to other countries. Because everyone here wants to simply be a lawyer/patent troll (or part of a patent troll law firm) that acquires as many patents as they could so that they can sue anyone that stumbles upon something. That's not a good thing. That's just a way for lawyers to manipulate the system to steal money from others by simply paper pushing without having to actually go through the hard work of innovating and creating a product and bringing it to market while stealing from those that do.
"The CAFC has made the patent system work and the value of patents, and hence the desire to invent as you can protect your IP, worth more."
You're conflating the value of patents to the patent holder (ie: the value of a monopoly to the monopoly holder) with social value. Of course a monopoly is valuable to the monopoly holder. but it comes at an expense to everyone else.
and it's much easier and quicker to think of an idea and get a patent on it than it is to actually implement it. Some stupid lawyer with no engineering experience is probably very incapable of coming up with anything non-obvious to an experienced engineer in a relevant field. So these lawyers come up with ideas all day and patent them before anyone can invest the time and resources to innovate. They're not gifted. They're no more able to come up with ideas than anyone else and have done nothing to deserve these monopoly privileges. Then when someone does succeed some lawyer comes in and uses our broken legal system to steal their profits through legalized extortion.
"The CAFC was the best thing to happen to small and medium size companies in the U.S. and we are living in a tech golden age due in large part to the patent system, which is now viewed as singular and consistent."
[citation needed]
because there is a ton of evidence suggesting you are wrong and almost no evidence supporting your case.
Since you can't argue the truth I suppose you must make up unsupported lies.
"Those who want to get rid of the CAFC do not understand its benefits or how it works or how its destruction would seriously impact the only part of the economy that has vibrancy."
I want to get rid of patents and I understand very well their harm. Yes, they benefit patent lawyers. But they harm everyone else. They hinder innovation and technological advancement and they raise prices. Perhaps they're beneficial to you. But they're harmful to everyone else.
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Re: The CAFC
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What Techdirt posts on is a thousand times more consequential than much of what the mainstream media reports on. I don't care what movie star is going out with whom or that some other movie star is in rehab again because Hollywood is all a bunch of druggies which explains why they can't do accounting right. All these monopolies that are destroying our economy is much more important to me and it's a pity that the mainstream media is part of the problem (ie: they benefit from govt. established monopoly privileges and they abuse those privileges to keep us ignorant of important issues while feeding us a deceitful narrative).
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Re: The CAFC
That's what the Supreme Court is for.
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Re: The CAFC
Not true. Tech boom predated CAFC by at least a decade, but okay.
While it is not perfect, it is considerably better than what existed before where each circuit had its own patent law and they did not agree on much
Circuit splits are a *feature* of the system, and it allows the Supreme Court to review and fix the issues. CAFC takes away that feature. That's a problem.
The CAFC has made the patent system work and the value of patents, and hence the desire to invent as you can protect your IP, worth more.
It has made the value of patents increase, undoubtedly. But many of us see that as a problem, since it has made the value of junk patents, and the tolls to innovation increase significantly. Patents are now used to put tollbooths on the process of innovation, which slows down progress and economic growth.
Are there some bad decisions and ethics issues, yes, but they are found on every court.
Except in every other court, you have the ability for a circuit split to form and then have SCOTUS weigh in. Not so with CAFC.
With CAFC you have a clubby atmosphere with patent lawyers. As Chris Sprigman has noted, Randall Rader was literally "treated as a rockstar" by the patent bar, who would have him perform concerts with his band.
The CAFC was the best thing to happen to small and medium size companies in the U.S. and we are living in a tech golden age due in large part to the patent system, which is now viewed as singular and consistent
Nothing in this sentence is even close to accurate.
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