Top Patent Judge Steps Down Over Ethics Scandal, Highlighting How CAFC Has Become Too Close To Patent Lawyers

from the total-failure dept

Rader and Michel's perspectives are likely skewed by the fact they spent their time on the bench surrounded by patent lawyers (who by definition work with firms that have the resources to hire patent attorneys). For the typical software-producing firm, patent lawyers are simply too expensive. Most firms never get patents, and they typically settle patent claims rather than taking them to court. As a result, Judges Michel and Rader rarely hear from smaller firms for whom the patent system is nothing but a burden.

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For many years we've written about the serious problems with CAFC , the court of appeals for the federal circuit, which is better known as the appeals court where all patent cases go. CAFC was created in the early 1980s under the belief that a more "specialized" court could better handle the more complicated technical issues related to patents. But what really happened is that it basically built a club of patent-friendly judges, who spent nearly all of their time with patent lawyers, and thus took an increasingly patent-friendly view of the world. That one of the key original judges on CAFC was also a long-time well known patent lawyer who almost single-handedly wrote the 1952 Patent Act, seemed to set the tone that has remained throughout the court's existence.Just a few years ago, Tim Lee highlighted how the two most recent Chief Judges at CAFC, Randall Rader and Paul Michel, were too close to patent lawyers, and had formed a friendly sort of club:That point has apparently been driven home loud and clear over the past few days. The WSJ revealed that the CAFC is in the midst of an ethics crisis after it had to reissue two rulings after Rader recused himself, and only once it came out that he not only sent a laudatory email to a patent lawyer practicing before the court, but even, a move that would likely help that lawyer sign up more clients.As all of this has come out, Rader has now stepped down as the Chief Justice and issued an apology Even though he's now stepping down (though remaining on the court -- just not as Chief Judge), this should, once again call attention to the fact that CAFC is an experiment that failed and should be done away with entirely. Rather than creating a specialized court that understood technical issues, it created acourt that massively changed patent law to favor patent holders and patent abusers. The fact that the Supreme Court has regularly struck down CAFC rulings as nonsensical is one sign. The fact that its Chief Judge thinks its okay to send buddy-buddy "good job" emails to lawyers practicing before the court is just the nail in the coffin of how far gone the court is.

Filed Under: cafc, patent lawyers, patents, randall rader