« Lawyers (Are) (Are Not) More Depressed |
Main
| Lawyer May Pass the Bar, but Still Can't Enter One »
Supremes v. Federal Circuit: Patently Perturbed
When it comes to patent law, the Supreme Court and the Federal Circuit have not been getting along lately. Three times in two years, the Supreme Court has overturned precedent established by the Federal Circuit -- the very court created to help bring uniformity to patent law. This week, FirstImpressions, an online companion to the Michigan Law Review, published a symposium that explores the state of patent law and the relationship between these courts. The symposium looks at the three cases -- KSR v. Teleflex, Microsoft v. AT&T and eBay v. MercExchange -- and considers their impact through five articles:
- The Supreme Court and the Federal Circuit: Visitation and Custody of Patent Law, in which Rebecca S. Eisenberg of the University of Michigan Law School suggests that the Supreme Court's relationship to patent law is analagous to that of a noncustodial parent who spends an occasional weekend with the kids.
- KSR v. Teleflex: Predictable Reform of Patent Substance and Procedure in the Judiciary, wherein John F. Duffy of George Washington University Law School argues that even with all the hype about KSR, its significance is still not fully appreciated.
- Making Sense of KSR and Other Recent Patent Cases, in which Harold C. Wegner of Foley & Lardner says KSR is the most important Supreme Court ruling on "obviousness" in 40 years and suggests a renewed interest by the court in patent law.
- Now That the Courts Have Beaten Congress to the Punch, Why Is Congress Still Punching the Patent System?, in which Robert A. Armitage of Eli Lilly & Co. considers why patent legislation has had such a tough time in Congress.
- KSR's Effect on Patent Law, in which Stephen G. Kunin and Andrew K. Beverina of Oblon, Spivak, McClelland, Maier & Neustadt say that KSR will force both patent prosecutors and litigators to change their strategies.
Some patent lawyers say all this Supreme wrist-slapping has been felt by the Federal Circuit, as most notably evidenced by its August decision In re Seagate Technology, in which it overruled a quarter century of its own decisions and brought itself more in line with Supreme Court precedent. I recently participated in a roundtable on this issue (along with another Law.com blogger, Bill Heinze of I/P Updates), in which a comment made by Morrison & Foerster partner Alison M. Tucher may have hit the nail on the head. Said she: "Nothing concentrates the mind of a judge like being reversed."
Posted by Robert J. Ambrogi on October 18, 2007 at 03:42 PM | Permalink
| Comments (0)