Judge Rader Talk Recap

By Eric Goldman

Last week, we had Chief Judge Rader of the Federal Circuit on campus for a lunchtime talk to a capacity crowd. Judge Rader is always an entertaining speaker, and he is typically more willing to publicly discuss doctrine and to self-evaluate than most judges. The theme of this particular talk was international issues.

Judge Rader always makes it clear that he is speaking with his “academic” hat on rather than his official judge’s hat. Further, as usual, these notes are my impressions, not verbatim transcriptions. We will be posting the video shortly so you can watch the talk first-hand.

He started by saying that we have much to learn from the rest of the world. We’re leaders in patents but our patent laws aren’t the best. He gave two examples: best mode (which he called a trap for the unwary) and inequitable conduct (which has morphed from a fraud prevention rule into a disclosure requirement).

Regarding patent litigation discovery, he said that we’ve taken meritorious principles and stretched them out of proportion. Discovery is now an excuse to bombard the other side with discovery requests to increase their costs. He said “I believe in a little injustice,” by which he meant that he’d be willing to cut off some discovery even if it may result in some erroneous outcomes at the margins. He’s working on model rules for discovery limits. This would be a good deal if we can get a more efficient systems. His guiding philosophy: judges need to facilitate, not frustrate, the international marketplace.

He favors our system to the specialized courts in Germany (where different courts hear infringement and validity claims). However, we’re moving closer to that model with re-exams. If re-exams become a full-fledged validity evaluation, we will become a two track system.

He noted that we’re the only country in the world that involves juries in patent cases. I think he is wary of juries’ contributions to the process, even as he acknowledged they are involved in only a small number of cases. He believes that summary judgment is key to our system. He pointed out that one notorious district court doesn’t work because they don’t use summary judgment enough–they believe in trying cases, inferentially to the system’s detriment.

Prof. Chien asked him about the ITC. Judge Rader said it’s not surprising when two Taiwanese companies square off in the ITC because we’re a unitary global market. Because the ITC is an administrative procedure, not a court, it’s OK if they have a different standard for injunctions than the eBay standard.

Judge Rader spoke about Chinese patent issues. His message to China: you need to act like a leader in IP. Chinese judges have circumscribed independence compared to our judges; they are officers of the state, which means they must carry out state policy and put China first.

He thinks it won’t be long before Chinese IP laws dictate terms to the world. We’ll be listening.

Regarding NPEs, Judge Rader thinks the court system has addressed a lot of issues. WRT damages, it’s harder for NPEs to reap windfalls. The courts have also cut back on willfulness. He had sharp words for patent marking cases. He said it’s non-productive litigation and isn’t facilitating innovation. It’s a burden on the system, and the Federal Circuit is raising the bar. However, he also thinks judges shouldn’t make judgments based on the litigant’s identity.

Judge Rader is still grousy about eBay. He said its a sad misapplication of an effort to deal with the NPE problem. His biggest disappointment is seeing the Supreme Court move from law to politics. eBay was a policy-oriented result and an overreaction to NPEs. His academic concerns: IP is property, but eBay doesn’t treat patents like property. Trial judges have always been able to consider the public interest before granting an inunction, such as health/safety issues.

He gave a big shoutout to Peter Lee’s Patent Law and the Two Cultures.

Many thanks to Judge Rader for yet another insightful and enjoyable romp through patent law!

UPDATE: Judith Szepesi’s coverage of the talk.

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