Supreme Court Smacks Down CAFC Yet Again: But This Time It May Help The Patent Trolls
from the not-necessarily-good-news dept
Another Supreme Court ruling… and another smackdown of CAFC, the Appeals Court for the Federal Circuit that handles all patent appeals. This regular smackdown of CAFC by the Supreme Court has become such a recurring story that it would almost be surprising if the Supreme Court took a patent case to do anything but smackdown CAFC. The key issue here is that the Supreme Court basically has taken away CAFC’s powers to review a patent directly to determine if the patent itself is valid or not. Instead, it can only review the district court’s findings, to determine if there was an obvious error by those district courts in handling claim construction. While this takes away power from CAFC, it actually is seen as beneficial to patent trolls, since (especially lately), the now-chastened CAFC has suddenly been rejecting patents left and right. But that might stop now as the CAFC’s ability to do that is now greatly limited.
The specific case is Teva Pharmaceuticals v. Sandoz, and the 7-2 ruling argues that appeals courts are only supposed to set aside “clearly erroneous” findings of fact by the district court, and that means that the CAFC should not do “de novo” review of a patent (i.e., from scratch):
Federal Rule of Civil Procedure 52(a)(6) states that a court of appeals ?must not . . . set aside? a district court?s ?[f]indings of fact? unless they are ?clearly erroneous.? In our view, this rule and the standard it sets forth must apply when a court of appeals reviews a district court?s resolution of subsidiary factual matters made in the course of its construction of a patent claim….
Even if exceptions to the Rule were permissible, we cannot find any convincing ground for creating an exception to that Rule here. The Rules Advisory Committee pointed out that, in general, exceptions ?would tend to undermine the legitimacy of the district courts . . . , multiply appeals . . . , and needlessly reallocate judicial authority.?
The ruling further notes that the CAFC can still do “de novo review” of the lower court’s “ultimate interpretation of the patent claims,” but just not the fact finding portion. Still, where this is concerning is that, for all the problems with CAFC judges generally loving patents, district court judges are unlikely to have much understanding of the underlying issues that go into a patent. And thus, the fact finding part of the process will just involve piling on experts, and the side willing to spend more on experts who will claim its interpretation of the claims is right will win, and the CAFC can no longer do much to challenge that.
Unlike recent CAFC smackdowns that were of the 9-0 variety, this one had two dissenting Justices: Thomas and Alito. Their dissent is a worthwhile read also. And it focuses on the somewhat fuzzy area in between what is a finding of fact and one of law. And it notes that patents are not that different from laws, and as such the claim construction aspect shouldn’t be seen so much as a finding of fact as a finding of law. Specifically, a patent is effectively a law against others being able to use a certain invention. And thus, according to the dissent, it should be treated like a law, subject to specific interpretations that can be reviewed by the appeals court:
Because they are governmental dispositions and provide rules that bind the public at large, patent claims resemble statutes. The scope of a patent holder?s monopoly right is defined by claims legally actualized through the procedures established by Congress pursuant to its patent power. Thus, a patent holder?s actual intentions have effect only to the extent that they are expressed in the public record….
Moreover, because the ultimate meaning of a patent claim, like the ultimate meaning of a statute, binds thepublic at large, it should not depend on the specific evidence presented in a particular infringement case. Although the party presentations shape even statutory construction, de novo review on appeal helps to ensure that the construction is not skewed by the specific evidence presented in a given case.
Furthermore, the dissent reasonably worries that this will now open up a huge opportunity for patent trolls to argue where the line is between fact and law, creating quite a bit of new litigation:
Perhaps the majority is correct that ?subsidiary factfinding is unlikely to loom large in the universe of litigated claim construction.? …. But I doubt it. If this case proves anything, it is that the line between fact and law is an uncertain one?made all the more uncertain by the majority?s failure to identify sound principles for the lines it draws. The majority?s rule provides litigants who prevail in district court a significant opportunity and incentive to take advantage of this uncertainty by arguing on appeal that the district court?s claim construction involved subsidiary findings of fact. At best, today?s holding will spawn costly?and, if the majority is correct about the frequency with which these evidentiary determinations make a difference, meritless?collateral litigation over the line between law and fact. We generally avoid any rule of judicial administration that ?results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case,? …, and there is no reason to embrace one here.
So while it’s not surprising that CAFC received another Supreme Court smackdown, it seems like perhaps this time, it may create more problems, rather than cleaning up a mess.