Scratch a patent-law expert and you'll find a Supreme Court critic. Most patent lawyers I know disdain the Supreme Court, or at least think it should butt out of their disputes and let the Federal Circuit, made up of experienced patent-law judges, do its own thing. Today in a pair of unanimous decisions reversing the Federal Circuit, the Supreme Court made it clear the contempt is mutual. It not only slapped down the specialist court, but also implied strongly that the lower court has run amok, making patent law based on its own policy preferences and not what the patent laws actually say.
Laugh if you like, but as Supreme Court emotions go, feelings seem to be running pretty high. In the first case, Limelight Networks Inc. v. Akamai Technologies Inc., the issue was whether one of Akamai's process patents for speeding up Internet downloads was violated. Limelight devised a strategy for splitting the steps of the copycat process between itself and its customers, so that no one entity or individual was copying the whole process. The Federal Circuit, protecting the patent holder, said that Limelight was infringing even if as a literal matter no one party was infringing on the whole process.
The Supreme Court reversed that ruling in exceptionally harsh terms. The lower court, it held, "fundamentally misunderstands what it means to infringe a method patent." All the steps had to be copied by one actor, the court said, or else there would be no "ascertainable" standard of infringement.
To get a sense of the extremity of the court's pronouncement, consider that the Supreme Court is made up of nine judges with zero collective patent experience and hears a handful of patent cases every few years. The Federal Circuit judges have heard thousands of patent cases, and are often experienced in patent law before joining the court. For the justices to say the circuit judges fundamentally misunderstand patent law is a bit like an intern copywriter saying Don Draper fundamentally misunderstands advertising.
The second case, Nautilus Inc. v. Biosig Instruments Inc., turned on the degree of clarity necessary in specifying what a patent covers. The patent statute calls for a statement "particularly pointing out and distinctly claiming" the invention subject matter. Once crucial to the patent process, this requirement has receded in importance relative to other parts of the patent -- but it's still on the books.
The Federal Circuit has interpreted this specification requirement generously in favor of the patent holder, requiring that the statement be "amenable to construction" and not "insolubly ambiguous." The Supreme Court said that wasn't good enough, and substituted its own reading of the law: The statement must not "fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention."
The difference isn't immediately obvious -- except that the new standard is presumably meant to be stricter than the one the Federal Circuit was using. The Supreme Court said that the existing interpretation can "breed lower court confusion" because it lacks the "precision" demanded by the law. It added, with the literary license that comes with being on top, that the lower court had left patent lawyers and judges "at sea without a reliable compass."
Yet "reasonable certainty," the court's new standard, sounds like an interpretive hole big enough to sail a (patented) boat through. The flexible standard of reasonable certainty is certainly no model of precision. As every law student knows, "reasonableness" is the word lawyers use when they want to provide latitude and discretion.
What's up with all this Federal Circuit bashing? Not only is it common in patent circles to complain about how the court "messes up" the law as understood and practiced by the patent bar, but patent lawyers fantasize about Congress taking jurisdiction away from the Supreme Court, leaving the Federal Circuit in charge of the field. The lines of jurisdiction have already been drawn so that ordinary appellate judges not on the Federal Circuit have little or no chance to rule on patent issues -- and the patent bar seems to like it that way. To other lawyers, the tone of patent lawyers criticizing the Supreme Court seems not only condescending but also proprietary, as though they're asking, "How dare the justices intervene in our affairs?!"
The justices aren't used to being taken lightly. They sit supreme, after all, over all the federal courts. And though they may not be patent lawyers, neither are they necessarily experts in tax law or employment-benefits law or environmental law -- other highly specialized areas where they decide cases regularly. As far as the justices are concerned, they can handle any area of law, including patents.
But there's something beyond judicial annoyance at work in the two patent opinions today. The justices, I think, suspect that the Federal Circuit is systematically shaping patent law in terms of its own policy preferences and understanding of the field, not according to the letter of the law. In the Akamai case, the justices thought the lower court was sidestepping the statute to protect patent holders. In the Nautilus case, the justices are worried that the Federal Circuit has decided the specification statement of the patent isn't important, just the detailed claim that forms the main body of the modern patent.
By insisting that it can interpret patent law better than the Federal Circuit, the Supreme Court is actually competing for judicial sovereignty with the lower court. This may sound weird, but in actuality the Supreme Court doesn't have the resources or knowledge to do patent law day and day out. As the Chinese adage has it, the heavens are high and the emperor is far away. Tomorrow, it will be business as usual in the Federal Circuit. Let the grumbling begin.
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Noah Feldman at firstname.lastname@example.org
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