News Item
Chief Judge Rader comments on the difference in the cultures of the Federal Circuit and the Supreme Court(3/21/11)
On March 18, 2011, Chief Judge Randall R. Rader of the United States Court of Appeals for the Federal Circuit gave the luncheon speech at the George Washington University School of Law’s Intellectual Property Panel Symposium in San Francisco. He talked about his view of the different cultures of the Federal Circuit and the United States Supreme Court.
The Supreme Court reversed a number of Federal Circuit decisions in the last decade. The perception has grown that the Supreme Court takes up cases from the Federal Circuit in order to reverse them.
As we wrote here, the Supreme Court has three cases from the Federal Circuit on its docket this year. It has not issued decisions in any of these cases as of writing but, according to the perception mentioned, it is not likely to affirm.
Chief Judge Rader teased his audience by offering to speak on one of three subjects. The one chosen by his audience, as he evidently expected, was the contrasting “cultures” of the Federal Circuit and the Supreme Court.
Thus, the Supreme Court has “holistic” culture in which it deals with grand issues. It prefers to avoid “bright-line” rules and likes to apply “balancing” tests, usually requiring consideration of three or four factors. This culture “aggrandizes” the role of judges and leaves them in charge.
The Federal Circuit decides cases from the commercial world. Balancing means indeterminacy and indeterminacy is bad for business. The commercial world needs rules that can be applied quickly and easily, so that companies can make predictions and thus decisions. The Federal Circuit has a more “formalistic” culture that acknowledges the need for rules for the sake of commercial actors and also for the sake of district courts, which have limited time to spend “delving” in the technology involved in patent cases.
The Chief Judge illustrated his remarks by discussing three Supreme Court cases in which the high court reversed the Federal Circuit. These cases were KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007) (“teaching, suggestion or motivation test” should not be applied rigidly to determine obviousness of combination of teachings of prior art references), eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (permanent injunction against infringement of a patent should not be granted automatically when the patent owner wins; a four-factor balancing test should be applied instead), and Bilski v. Kappos, 561 U.S. ___, 130 S. Ct. 3218, 177 L. Ed. 2d 792 (2010) (“machine or transformation” rule rejected as exclusive test of patent-eligible subject matter).
The Chief Judge said there is a “cultural divide” between the Supreme Court and the Federal Circuit. The Federal Circuit can apply rules more flexibly but the Supreme Court also should understand the need for rules to help the commercial market. Both sides need to better understand each other. The academicians should help the courts achieve this better understanding.