The Error Of Their Ways
Professor Mark A. Lemely is quoted in Law.com in a story about patent law reform:
That's an odd message coming from a federal judge, especially one in charge of America's patent court. Established 27 years ago, the Federal Circuit was supposed to make patent law more predictable by consolidating it with a single set of expert appellate judges, rather than having it addressed by 13 separate federal circuit courts. The Federal Circuit also was implicitly supposed to make it easier to get and keep a patent.
Yet like many experiments, this one had unintended side effects. Not only did it become easier to obtain patents, but, some lawyers and academics say, it became too easy. The Federal Circuit's rulings also loosened standards on what a patent could cover, which helped lead to a spike in patent infringement litigation. "If there was a chance to make some law or elaborate on some law, they would typically lean toward the patent holder," says Dechert partner Andrew Thomases.
Things got so bad that both the U.S. Supreme Court and Congress, after years of watching from the sidelines, entered the fray. A bill that would have undone many of the Federal Circuit's rulings and practices-ranging from damages and claim construction-came close to passing before dying in the Senate last summer. And after two decades of relative silence, since 2006 the high court has reversed the Federal Circuit in all six patent decisions it issued. The Federal Circuit has "been a bit spooked by the Supreme Court's interest in patent law," says Mark Lemley, a professor at Stanford Law School and partner at IP boutique Durie Tangri Lemley Roberts & Kent.
The advent of the Federal Circuit immediately changed things in patent law. The court's formation eliminated forum shopping at the appellate level, though it remained alive and well at the district court level. Fewer patents were invalidated, with 56 percent of contested patents in the early 1990s held as valid, according to research by Lemley.