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

from the total-failure dept

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:
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.
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, which he did after the rulings had been issued, and only once it came out that he not only sent a laudatory email to a patent lawyer practicing before the court, but even urged that lawyer to share the letter, 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 a captured court 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.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, May 23rd, 2014 @ 7:06pm

    About damn time we start to reverse the regulatory capture of CAFC

     

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  2.  
    identicon
    Anonymous Coward, May 23rd, 2014 @ 7:20pm

    What... just 1?

    Really, what is all the hoopla about? This is just 1 judge, stepping down to protect his hide. Another stooge will be along shortly. Nothing but the face is changing.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    Shadow Dragon (profile), May 23rd, 2014 @ 7:32pm

    now if only

    Now if only Beryl Howell does the same.

     

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  4.  
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    That One Guy (profile), May 23rd, 2014 @ 7:36pm

    Stepping down from the 'king' seat and having to share seats with the other judges, even issuing an apology, truly he's certainly been punished for his misconduct, and I'm sure he's learned his lesson. /s

     

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  5. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, May 23rd, 2014 @ 9:01pm

    You certainly try to sound as if you are intimately familiar with the CAFC, it's judges, procedures, decisions, those who practice before the court, etc.

     

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  6.  
    icon
    G Thompson (profile), May 24th, 2014 @ 2:49am

    Re:

    and you certainly try to sound like you are a troll.


    wait I'm incorrect... you succeed

     

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  7.  
    identicon
    Anonymous Coward, May 24th, 2014 @ 6:07am

    Re:

    You certainly try to sound arrogant.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, May 24th, 2014 @ 12:36pm

    is there anyone involved in American justice, from the police to the courts, to the lawmakers, to the politicians who isn't taking some sort of kick back? every single one of them appear to be totally ignoring the facts that they are elected by the people to work for the people, not by the people so as to be able to keep raking in money from big business, provided certain laws are made or not, depending on what that contributor wants. i am not surprised that because of the way things operate that the USTR is constantly trying to get ridiculous 'trade deals' working that benefit the USA more than any of the other countries, threatening with even more ridiculous sanctions and God knows what if they try to defend their own countries and people!!

     

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  9.  
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    madasahatter (profile), May 24th, 2014 @ 1:38pm

    Punishment

    His punishment should very harsh for destroying any public trust in the judiciary. For his actions there is no "cruel and unusual punishment".

     

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  10.  
    identicon
    Anonymous Coward, May 24th, 2014 @ 6:06pm

    eh

    I'm no fan of the cafc and I have a particular distate for Rader. But I'm a little underwhelmed by this news. There are a whole lot scarier conflicts of interest than this. It doesn't bother me much to hear that a judge expressed that he's impressed or displeased ( e.g. prenda) with the job a lawyers done.
    Even the more discreet judges surely have opinions about the attorneys they work with. It was unwise of Rader to not keep his opinion to himself, but not really proof of corruption.

     

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  11.  
    identicon
    Anonymous Coward, May 24th, 2014 @ 7:55pm

    Re: eh

    If it serves a narrative even relatively inconsequential matters are fair game. Probably not non-compliant with judicial code, but does seem a lapse of judgment. Sadly, this lapse used to craft an article once more making declarations of fact that are terribly misleading at best.

     

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  12.  
    identicon
    Anonymous Coward, May 25th, 2014 @ 1:32am

    That's exactly what we need now to make this farce of a democracy in US even worse: lobbying of judges by lawyers.

     

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  13.  
    identicon
    Anonymous Coward, May 25th, 2014 @ 10:08am

    Re: Re: eh

    I'm glad you provided such elaborate and convincing arguments to support your point.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, May 25th, 2014 @ 4:55pm

    Re: Re: eh

    Your comment is dishonest at best. To deny the corruption in this country either makes you highly ignorant and brainwashed with propaganda or it makes you a dishonest shill. I will take the later.

     

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  15.  
    identicon
    Anonymous Coward, May 25th, 2014 @ 11:51pm

    Re: Re: eh

    Michael J. Slonecker just hates it when due process is enforced.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, May 26th, 2014 @ 5:44am

    Re: Re: Re: eh

    Your comment comes across as that of a low information voter who relies on others to think for them. Many negative statements about the CAFC have spewed forth here over the years from TD principals, statements that upon close examination had no underlying basis in fact. Assuming arguendo that Rader sent the alleged email, a lapse in judgment from a well respected jurist does not compel the conclusion that fixes are in, judges too cozy with counsel, etc. At one time or another I have met or dealt with most of the court's members, and not once did I detect even the slightest hint that our dealings were anything other than what transpires in courtrooms around the US between judges and lawyers as triers of law and fact and as advocates. If something truly untoward was documented I would not protest the incident being reported. Here, however, it seems that situations are noted, and then twisted in ever increasingly misleading fashion so as to try and convey the impression to TD readers that the fix is in. This is not news reporting. This is what rags at grocery line checkouts do as a part of their business models.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, May 26th, 2014 @ 5:54am

    Re: Re: Re: eh

    Not my name, but your comment does illustrate two traits exhibited by some here at TD (and these "some" include certain of its principals). One, they decry and insult those they perceive do not respect privacy, and then ignore same when it suits their purposes. Either you respect privacy or you do not. This particular AC professes the former, but clearly adheres to and practices the latter.

    Second, the incessantly repeated meme manifests not a whit of understanding about what the term "due processes" comprises. Surely a more authoritative source can be found and studied than the lid of a cereal box.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, May 26th, 2014 @ 5:57am

    Re: Re: Re: Re: eh

    Make that "due process".

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, May 26th, 2014 @ 6:43am

    Re: Re: Re: Re: eh

    Michael L. Slonecker, then. Not the right name; on the other hand, the RIAA has gone on similarly shoddy evidence to do far worse.

    It is even more arguable that those who began the incessant repetition of "hate of copyright law" were the ones who initiated this whole debacle in demonstrate their lack of understanding as to what copyright law enforcement is, instead of crowing support for litigation against the elderly and disabled.

     

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  20.  
    identicon
    john jamison, May 26th, 2014 @ 12:14pm

    The CAFC

    Look at the tech boom in this country and you will find that it dovetails with the creation of the CAFC. While it is not perfect, it is considerably better than what existed before where each circuit had its own patent law and they did not agree on much. The CAFC has made the patent system work and the value of patents, and hence the desire to invent as you can protect your IP, worth more. Indeed, the number of patents (and patent attorneys) spiked after the CAFC formation. Are there some bad decisions and ethics issues, yes, but they are found on every court. The CAFC was the best thing to happen to small and medium size companies in the U.S. and we are living in a tech golden age due in large part to the patent system, which is now viewed as singular and consistent. Those who want to get rid of the CAFC do not understand its benefits or how it works or how its destruction would seriously impact the only part of the economy that has vibrancy.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, May 26th, 2014 @ 1:43pm

    Re: The CAFC

    Correlation is not causation.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, May 26th, 2014 @ 7:24pm

    Re: Re: Re: Re: eh

    "Your comment comes across as that of a low information voter who relies on others to think for them."

    Why, because I disagree with you? and really I don't need Mike to think for me. Nor do I need you.

    "Many negative statements about the CAFC have spewed forth here over the years from TD principals, statements that upon close examination had no underlying basis in fact."

    [citation needed]

    "Assuming arguendo that Rader sent the alleged email, a lapse in judgment from a well respected jurist does not compel the conclusion that fixes are in, judges too cozy with counsel, etc."

    It contributes more evidence of the problem of a predisposed bias.

    "At one time or another I have met or dealt with most of the court's members, and not once did I detect even the slightest hint that our dealings were anything other than what transpires in courtrooms around the US between judges and lawyers as triers of law and fact and as advocates."

    Since you're just an AC I have no way of verifying who you are, what your conflicts of interest may be, or whether or not you are likely telling the truth. For all I know you could be telling a lie. I could, however, verify the identify of Mike and a good history to go along with that. So who should I trust more? Some AC or Mike?

    "If something truly untoward was documented I would not protest the incident being reported."

    and what should I care what you, an AC, personally think constitutes something 'untoward' and what you would or would not protest?

    "Here, however, it seems that situations are noted, and then twisted in ever increasingly misleading fashion so as to try and convey the impression to TD readers that the fix is in. This is not news reporting. This is what rags at grocery line checkouts do as a part of their business models."

    Or maybe it is your comment that's taking a post and twisting it in a misleading fashion so as to try and convey the impression that TD is the one twisting the situation.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Anonymous Coward, May 26th, 2014 @ 7:44pm

    Re: The CAFC

    "Indeed, the number of patents (and patent attorneys) spiked after the CAFC formation. "

    When the criticism is that the patent system hinders innovation then the number of patents is not a good metric to determine the extent that patents hinder or help invention and innovation.

    and if patents were a good thing the number of engineers, scientists, and innovators - and not lawyers - would have spiked. The number of lawyers spiking, taking away from the time and resources of engineers, is actually a bad thing. and that's partly why many of these professions are going to other countries. Because everyone here wants to simply be a lawyer/patent troll (or part of a patent troll law firm) that acquires as many patents as they could so that they can sue anyone that stumbles upon something. That's not a good thing. That's just a way for lawyers to manipulate the system to steal money from others by simply paper pushing without having to actually go through the hard work of innovating and creating a product and bringing it to market while stealing from those that do.

    "The CAFC has made the patent system work and the value of patents, and hence the desire to invent as you can protect your IP, worth more."

    You're conflating the value of patents to the patent holder (ie: the value of a monopoly to the monopoly holder) with social value. Of course a monopoly is valuable to the monopoly holder. but it comes at an expense to everyone else.

    and it's much easier and quicker to think of an idea and get a patent on it than it is to actually implement it. Some stupid lawyer with no engineering experience is probably very incapable of coming up with anything non-obvious to an experienced engineer in a relevant field. So these lawyers come up with ideas all day and patent them before anyone can invest the time and resources to innovate. They're not gifted. They're no more able to come up with ideas than anyone else and have done nothing to deserve these monopoly privileges. Then when someone does succeed some lawyer comes in and uses our broken legal system to steal their profits through legalized extortion.

    "The CAFC was the best thing to happen to small and medium size companies in the U.S. and we are living in a tech golden age due in large part to the patent system, which is now viewed as singular and consistent."

    [citation needed]

    because there is a ton of evidence suggesting you are wrong and almost no evidence supporting your case.

    Since you can't argue the truth I suppose you must make up unsupported lies.

    "Those who want to get rid of the CAFC do not understand its benefits or how it works or how its destruction would seriously impact the only part of the economy that has vibrancy."

    I want to get rid of patents and I understand very well their harm. Yes, they benefit patent lawyers. But they harm everyone else. They hinder innovation and technological advancement and they raise prices. Perhaps they're beneficial to you. But they're harmful to everyone else.

     

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  24.  
    identicon
    Anonymous Coward, May 26th, 2014 @ 9:30pm

    Re: The CAFC

    I can't believe you seriously tried to argue a law's worth by the increase in lawyers it brings.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Anonymous Coward, May 27th, 2014 @ 4:11am

    Re: Re: eh

    "If it serves a narrative even relatively inconsequential matters are fair game."

    What Techdirt posts on is a thousand times more consequential than much of what the mainstream media reports on. I don't care what movie star is going out with whom or that some other movie star is in rehab again because Hollywood is all a bunch of druggies which explains why they can't do accounting right. All these monopolies that are destroying our economy is much more important to me and it's a pity that the mainstream media is part of the problem (ie: they benefit from govt. established monopoly privileges and they abuse those privileges to keep us ignorant of important issues while feeding us a deceitful narrative).

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    nasch (profile), May 27th, 2014 @ 1:17pm

    Re: The CAFC

    While it is not perfect, it is considerably better than what existed before where each circuit had its own patent law and they did not agree on much.

    That's what the Supreme Court is for.

     

    reply to this | link to this | view in thread ]

  27.  
    icon
    Mike Masnick (profile), May 28th, 2014 @ 6:02am

    Re: The CAFC

    Look at the tech boom in this country and you will find that it dovetails with the creation of the CAFC

    Not true. Tech boom predated CAFC by at least a decade, but okay.

    While it is not perfect, it is considerably better than what existed before where each circuit had its own patent law and they did not agree on much

    Circuit splits are a *feature* of the system, and it allows the Supreme Court to review and fix the issues. CAFC takes away that feature. That's a problem.

    The CAFC has made the patent system work and the value of patents, and hence the desire to invent as you can protect your IP, worth more.

    It has made the value of patents increase, undoubtedly. But many of us see that as a problem, since it has made the value of junk patents, and the tolls to innovation increase significantly. Patents are now used to put tollbooths on the process of innovation, which slows down progress and economic growth.

    Are there some bad decisions and ethics issues, yes, but they are found on every court.

    Except in every other court, you have the ability for a circuit split to form and then have SCOTUS weigh in. Not so with CAFC.

    With CAFC you have a clubby atmosphere with patent lawyers. As Chris Sprigman has noted, Randall Rader was literally "treated as a rockstar" by the patent bar, who would have him perform concerts with his band.

    The CAFC was the best thing to happen to small and medium size companies in the U.S. and we are living in a tech golden age due in large part to the patent system, which is now viewed as singular and consistent

    Nothing in this sentence is even close to accurate.

     

    reply to this | link to this | view in thread ]


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