get the sense that the patent system faces serious problems these days?
When I came to this game in 1983, the formed Federal Circuit then newly would bring consistency, predictability and respectability even for the patent system. And did — for a while.
In the former Chief Judge Markey, the Federal Circuit decisions made sense. Requested, and depended upon written statutes - you know, the type actually passed by Congress and signed by the President and all. Addressed important issues of patent law and provide clear, practical answers that could be understood and applied in the future. (Always does not agree with them, but at least could understand and apply). And, most importantly, the decisions seem to be part of a real effort to build a body of coherent, viable and just law to resolve disputes fairly and to promote innovation as envisaged by the Constitution.
However, in recent years, I asked if we are going forward or backward. Is just me, or is any other going crazy trying to figure out what you are doing the Federal Circuit?
The good news is that the Supreme Court has taken the case of eBay and granted cert. The question, as I understand it, is whether courts should automatically to grant permanent cessation when the infringement is. Personally, I think that they should – exclusive use is the essence of any property rights. But the true meaning is the Supreme Court will to provide oversight on the Federal Circuit.
Recently also submitted a request for a certificate in the case of Phillips. Dennis Crouch has a copy of the petition on his patently-O blog. It is interesting to read. I hope sincerely, that the Supreme Court has been the case. The reality that any three judge panel of the Federal circuit effectively you can override the factual findings of a lower court without showing no clear error and simply because the panel wants a different result is contrary to the idea that we are a nation of laws. Request, in what I consider a courageous step, really notes that having appropriated by itself the sole power ultimately deciding what patent claims half, the Federal Circuit is unlikely self-employed to renounce energy - hence the need for intervention by the Court of justice. (I love when other people have the courage to say what the rest of us!) The idea of claim construction is only one question of law lacks fundamentals in fact is a farce and a fraud and should be discarded. (In my opinion, is also contrary to the seventh amendment, but that is another matter.) (And Yes, I am aware that the Supreme Court in Markman says otherwise).
Finally, in my own way smaller, than to me, on behalf of one of the clients, who seek banc review [Download file] of an adverse ruling last month I have received from the Federal Circuit. In this case, the Federal Circuit shot one of our patent claims as devoid of written description while everything indisputably described the elements themselves claim and claim itself was a claim filed originally was permitted and issued without amendments. I am certain bias, but I sincerely believe that the federal circuit ruling can simply cannot be reconciled with prior precedent of ACFA, arguing that had originally filed claims automatically satisfy the requirement of the written description and "nothing more is required". See in re Gardner, 475 F.2d 1389, 1391 (ACFA 1973). The good news is that the request does not have been denied summarily as usual. The Federal Circuit has sought and received a response from my worthy opponents. To date, there has been no decision yet envelope if the request should be granted. Since the current legislation on the "written description" requirement is, to put it politely, confused, I hope the Court will soon have the matter up in banc, preferably in my case, but if not so in another.
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