get the sense that the patent system is facing serious problems these days?
When I got in this game in 1983, the newly formed then the Federal Circuit in order to bring consistency, predictability, and even respectability to the patent system. And it did--for a while.
Under the former Chief Judge Markey, the Federal Circuit decisions sense. They are used and relied on written statutes--you know the type of actually adopted by Congress and signed by the Chairman and all. They are further processed, are important issues of patent law and gave clear, practical answers that could be understood and applied in the future. (I agree not always with you, but at least you were able to understand and use them). And most importantly decisions appeared to be part of a genuine effort to build a consistent, usable and fair body of law which would resolve disputes fairly and promote innovation, as determined by the Constitution.
In the last several years, I have wondered whether we want to forward or backward. Is it just me or is there anyone else go crazy trying to figure out what the Federal Circuit does?
The good news is that the Supreme Court has taken up the eBay case and granted cert. The question is, as I understand it, is whether the courts should grant a permanent injunction automatically when the infringement is found. Personally, I think they should--exclusive use is the essence of any property. But the real meaning is the Supreme Court's willingness to provide oversight of the Federal Circuit.
Recently, also a petition to the cert was lodged in the proceedings, Phillips. Dennis Crouch has a copy of the petition on its Openly O blog. It is interesting reading. I sincerely hope, the Supreme Court will take the case. The reality, as all three judge panel of the Federal Circuit can be effectively overrule the factual results of a lower instance without any shows clear error and simply because the Panel wants a different result, contrary to the idea that we are a nation of laws. Petition in what I see as a bold step, in fact, notes, have net revenue for itself the only power at the end of the day, in order to decide what patent claims mean, the Federal Circuit is unlikely on its own to abandon the flow--hence the need for the Supreme Court intervention. (I love it when other people have the courage to say what the rest of us are thinking!) The idea that claim construction is solely a question of law, devoid of factual foundation is a farce and a scam and should be discarded. (In my opinion, it is also against the seventh amendment but that is another issue. And Yes, I am aware that the Supreme Court in Markman said otherwise.)
Finally, in my own small way I, on behalf of one of the clients are looking for because the banc review [download file] of a negative decision I received from the German Circuit last month. In that case, the Federal Circuit was shot down one of our claims that's missing the written description, even if the elements themselves claim was all indisputable described and the claim itself originally filed a claim, which was authorized and issued without amendments. I am admittedly biased, but honestly believe the Federal Circuit ruling simply cannot be reconciled with the prior CCPA precedent holding as originally filed claims automatically with the written description and that "nothing more is needed." See in re Gardner, 475 f. 2d 1389, 1391 (CCPA 1973). The good news is that the petition has not been denied summary as usually happens. The Federal Circuit has requested and received a response from my worthy opponents. So far, there have been no decision yet on whether to grant the petition. The current legislation relating to the requirement of the "written description" is, to put it politely, confused, I am confident the Court will soon take up the matter since the banc, preferably in my case, but if not, in another.
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