« on: 01-22-13 at 08:52 pm »
Dear All: Just got back from the NYSBA annual meeting, IP law section. Chief Judge Rader gave the keynote address re: “judicial activism and their [sic] impact on the practice of IP law”. Just some things I came away with, assuming I understood correctly. I don’t mean to put words in His Honor's mouth, just share my “take aways”.
- His Honor stressed that, in his view, patent law exists to promote the useful arts, technical innovation, not commerce per se, not manufacturers (in context of discussion of NPEs aka “trolls”). Opinion: commerce,= $$$, is a good “promoter”.
- Patents should be valued / assessed / judged according to the contribution to advancement in the art they make. Opinion: of course, this assumes that “contribution to the art” is readily cognizable “out of the box”, not through the prism of history.
- Perhaps patent infringement cases should be turned around 180 deg.. Decide on the value of the case (using market analysis in response to a question) first, then allocate judicial resources accordingly. My question to his Honor: “so, you have a beef worth 1M, I have a beef worth only 100K. You are entitled to more judicial resources that I am?” Ans: yes, you get decided on S/J, but I recognize it is a controversial point." Opinion: we are indeed short on judicial resources. Folsom, J. (ret., ED TX) noted that he had a docket of 200+ patent cases (criminal and other civil on top of that).
- Concerning “activism”, suffice it to say His Honor was, shall I say, “non-plused” with SCOTUS’ rational for section 101 decisions (Bilski, Prometheous, but, hey, who likes to get spanked?) Opinion: in my personal view, both cases reached the “right” result. But we here have had debates over the correctness of such decisions and the propriety of the grounds.
- Anyway, it was anything but a “speech”. Immediately came down from podium and engaged the audience in discourse.