how many times will the federal circuit need to be slapped upside the head on these issues
The Federal Circuit is essentially immune to Supreme Court decisions of this type. Aside from occasionally judge Lourie, who wrote the plurality opinion for the CAFC, there are no apparent judges on the CAFC who care what the Supremes have to say. They don't have to; the Supreme Court can reverse on average one or two patent cases a year while the CAFC takes a thousand.
The CAFC will eventually overturn this case just as they have been making progress overturning KSR v. Teleflex, a much more important precedent. [0] Obviousness would have taken care of many more abusive troll cases than this one if it were taken seriously, but the Supreme Court cannot force the CAFC to do anything.
The CAFC judges are mostly chosen from organizations that depend maximizing the power and scope of patents, largely appointed to please that patent bar, esteemed and supported by the social and intellectual environment of the patent bar, invited to speak and surrounded by patent bar lobbyists, and promised their chances to make millions after retirement -- if they wish -- back in the patent bar.
The idea of a single subject court was a novel experiment in 1982 but it's a disaster and a failure from a judicial and technical perspective. It's even worse for innovative American businesses. Probably things won't change unless the CAFC is changed.
Why would the CAFC, even assuming it could, want to overturn a case in which the Supreme Court affirmed both the judgment and the dominant reasoning of the CAFC? I mean, that would go beyond not caring what the Supreme Court does into active spite.
> The idea of a single subject court was a novel experiment in 1982
The CAFC isn't a single subject court, and both of its two immediate predecessors (the United States Court of Claims and the United States Court of Customs and Patent Appeals, 1929-1982) were more like single-subject courts than the CAFC is, so, insofar as the CAFC could even remotely be considered by such a court, it wasn't a "novel experiment" in that direction (and Court of Customs and Patent Appeals prior incarnation as the Court of Customs Appeals, 1909-1929, was a single subject court, and until 1914 was a single-subject court with no further avenue of appeal.)
The CAFC was part of an evolution away from narrow-subject courts, not a "novel expirement" to try a "single subject court".
insofar as the CAFC could even remotely be considered by such a court
Before the CAFC, patent appeals went to the regional circuits. Now they all -- every one in the nation -- run to the corrupt CAFC. Even non-patent cases like the case where CAFC ruled in favor of copyrights on APIs can be packaged off the the CAFC instead of regional circuits by including unrelated patent issues.
The regional circuits created a mess with patent law. Wasn't it the 7th circuit that never found a patent to be valid. 3M was justifiably upset about that. If forum shopping is bad now, think how it would be with regional circuit patent law.
> Wasn't it the 7th circuit that never found a patent to be valid. 3M was justifiably upset about that. 3M was justifiably upset about that. If forum shopping is bad now, think how it would be with regional circuit patent law.
I started out at the very beginning of the Federal Circuit era. I think you might be thinking of the 8th Circuit (and the District of Minnesota) as implacably hostile to patents. And yes, forum-shopping could be really bad in those days.
> and promised their chances to make millions after retirement -- if they wish -- back in the patent bar.
This is a bullshit angle you're working. It is exceedingly rare for a federal court of appeals judge to return to private practice. The ones who do are usually appointed very young. 75% of former CAFC judges have died on the bench. The rest retired outright, or taught. Judge Rader isn't going to be making millions teaching IP law in China.
The Federal Circuit is essentially immune to Supreme Court decisions of this type. Aside from occasionally judge Lourie, who wrote the plurality opinion for the CAFC, there are no apparent judges on the CAFC who care what the Supremes have to say. They don't have to; the Supreme Court can reverse on average one or two patent cases a year while the CAFC takes a thousand.
The CAFC will eventually overturn this case just as they have been making progress overturning KSR v. Teleflex, a much more important precedent. [0] Obviousness would have taken care of many more abusive troll cases than this one if it were taken seriously, but the Supreme Court cannot force the CAFC to do anything.
The CAFC judges are mostly chosen from organizations that depend maximizing the power and scope of patents, largely appointed to please that patent bar, esteemed and supported by the social and intellectual environment of the patent bar, invited to speak and surrounded by patent bar lobbyists, and promised their chances to make millions after retirement -- if they wish -- back in the patent bar.
The idea of a single subject court was a novel experiment in 1982 but it's a disaster and a failure from a judicial and technical perspective. It's even worse for innovative American businesses. Probably things won't change unless the CAFC is changed.
[0] final four paragraphs of http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-pr...