A Patent Reformist Supreme Court and Its Unearthed Precedent

How is it that the Supreme Court, a generalist court, is leading a project of innovation reform in our times while the court of appeals established to encourage innovation is having its precedent stricken down time and again? This decade the Supreme Court has issued far more patent law decisions than in any decade since the passage of the Patent Act of 1952. In doing so, the Supreme Court has overruled the Federal Circuit in roughly threequarters of the patent cases in which the Supreme Court has issued opinions. In most of these cases, the Supreme Court has established rules that favor accused infringers over patent holders, and the result has been an era of patent litigation reform far more impactful than anything Congress has achieved. Scholars have observed that the Supreme Court tends to overrule Federal Circuit decisions that (1) impose rigid legal rules as opposed to flexible standards; (2) adopt special rules for patent law cases rather than applying general principles of law and equity applicable to all federal cases; and/or (3) fail to grant sufficient discretion to the district courts. This paper examines the twenty-eight Supreme Court opinions overruling the Federal Circuit since 2000 and quantifies their rationales to discover that, while these reasons are often invoked, the Supreme Court’s most common rationale is that the Federal Circuit has disregarded or cabined its older precedent from before the 1982 creation of the Federal Circuit, from before the 1952 Patent Act, and even from before the 20th Century. The Court has relied on this rationale in twenty-one of the twenty-eight cases. The paper then seeks to probe beneath the surface level patterns to discover the deeper roots of the discord between the Supreme Court and the Federal Circuit. Constitutional law scholars have observed that the Supreme Court’s policy preferences are the primary, unstated motivation behind its decisions. The Court writes opinions that rely on the flexible tools of precedent and stare decisis in order to implement its policy choices while maintaining its institutional reputation for neutrality. The Court does this by influencing precedent vitality; the Court selects which of its precedent to rely upon and augment and which of its precedent to distinguish and narrow. This process runs in direct conflict with the Federal Circuit, a court that was originally conceived and viewed by some of its members as a court intended to bring uniformity to patent law in a way that would reinvigorate patent rights. The Federal Circuit would implement the 1952 Patent Act in a way that would draw patent law out of the nineteenth century. But for the Supreme Court, the 1952 Act was a mere codification of patent law as developed by the courts for over a hundred years. Hence, the Federal Circuit seeks to influence precedent vitality at direct cross-purposes with the Supreme Court. The result of the Supreme Court’s project has been a new era of common law patent reform in favor of accused infringers, which is gaining momentum as the Supreme Court decides far more patent cases than it has since the passage of the Patent Act of 1952

Становлення прецедентних імен та еволюція їх значення в американському медіадискурсі (Formation of precedent-related names and evolution of their meaning in the American media discourse)

У статті проводиться дослідження процесу становлення імен як прецедентних та еволюції їх значення. Визначаються та ілюструються основні причини зміни значень прецедентних імен та чинники, що сприяють витісненню наявних прецедентних імен новими. (The article investigates the processes of the evolution of precedent-related names. On the basis of modern media, the author illustrates the examples of the processes taking place with precedent-related names and explains the reasons for these processes. A precedent-related name usually represents a bigger number of similar objects being the most prominent representative of this group. If a new name appears, it may substitute the existing one. The names in question may also function simultaneously in the language and be used as synonyms. The new precedent-related name may displace the existing one because of a much stronger emotional impact, or because of its relative novelty. Another reason for the displacement of a precedent-related name is the change in its interpretation. Since each precedent-related name has a set of dominant features, if another feature appears, it can conflict with the existing ones up to the point when the name changes its meaning and can no longer be used to nominate the same things. The results of the research expose the dynamic nature of the cognitive features of precedent-related names and help to trace the exact moment when a precedent-related name appears in the language or changes its meaning.

Access to and Authority to Cite Unpublished Decisions of the PTO

This paper begins with the Solicitor [of the U.S. Patent and Trademark Office]\u27s explanation of the term unpublished. It then reviews various kinds of published PTO decisions where the precedential effect of unpublished decisions has been addressed. There, we see that the PTO has generally not ignored unpublished precedent--at least, deliberately--and that the Solicitor agrees that this may not be done. Next, this paper examines the almost universal practice of federal appeals courts disallowing use of their unpublished decisions as precedent--and some of the reasons for widespread criticism of that practice. It also discusses some of the reasons that judges, regardless of their own practice, do not permit agencies to ignore prior decisions. Last, the paper turns to the Freedom of Information Act (FOIA). There, we see that while the FOIA addresses the use of precedent by agencies against parties, it does not explicitly deal with the use of precedent by parties against agencies or other parties. We also find that the PTO often discloses more information than the FOIA requires. Nevertheless, it seems that, given current technology, still more could be cost-effectively made available. Indeed, from examining this situation, I have concluded that Congress should further amend the FOIA to permit affected persons to obtain critical information more easily from all agencies

The law of the land

This article considers the status of foreign precedents in national courts. It examines possible reasons for courts referring to them and concludes that, absent some incorporating convention, judges cannot ever be said to have an obligation to refer to them. But it also shows that there is nothing unprincipled about (notwithstanding that there are some good reasons, especially in the context of constitutional adjudication, for cautioning against) national courts choosing to treat foreign precedents as persuasive authority. It is also suggested that no satisfactory argument can be adduced to support the proposition that a national court must never rely on foreign precedent as the sole reason for modifying the indigenous common law – though it seems very unlikely that judges would ever need (still less want) to rely on foreign precedent in this way

The law of the land

This article considers the status of foreign precedents in national courts. It examines possible reasons for courts referring to them and concludes that, absent some incorporating convention, judges cannot ever be said to have an obligation to refer to them. But it also shows that there is nothing unprincipled about national courts choosing to treat foreign precedents as persuasive authority, notwithstanding that there are some good reasons, especially in the context of constitutional adjudication, for cautioning against this. It is also suggested that no satisfactory argument can be adduced to support the proposition that a national court must never rely on foreign precedent as the sole reason for modifying the indigenous common law – though it seems very unlikely that judges would ever need (still less want) to rely on foreign precedent in this way

DES Working Paper No 1: A Paler Shade of Litigation: Still more confusion in Musical Property Rights.

NoThis paper gives an economic analysis of the judicial decisions in the disputes over authorship of Procol Harum's 'A Whiter Shade of Pale'. The first legal contest took place in 2006, 39 years after the song was written and was found in favour of the plaintiff (Fisher), in the first case he has brought against Brooker-Reid, in terms of his right to authorship. He was deemed to merit 40% of the musical composition rights but only from the date of his application onwards. However the case went to appeal with the result that in April 2008, it was found that although Fisher was still entitled to the authorship status he had been granted that he was not now entitled to any share whatsoever of the composing royalties. This case is partly unusual in that the judge, in the initial case, had formal musical training and saw fit to interpolate this human capital into the proceedings. The defendants made a number of remarks about the nature of the precedent set and its implications which can be usefully discussed in terms of economic models of production. In the appeal hearing one of the reasons given for the decision reached was the argument that the previous cases set an unfortunate precedent detrimental to composers of pop/rock music. The 'rock and pop' music production mode is discussed here with reference to this and other pertinent cases

Debunking the Sanctity of Precedent

This Article addresses the question of how courts should interpret deviant language-language that falls well beyond the parameters of conventional phraseology. This Article concludes that courts should abandon precedent completely in favor of other governing factors-such as intent, custom, fairness and other policy considerations-because the benefits of ad hoc determination far outweigh the costs of inconsistent treatment of such language. To reach this conclusion, Part II first examines what courts actually say and do about deviant language in two illustrative situations, one involving consideration and the other a gift. Part III assesses the importance and value of precedent in these situations. It begins with further analysis of the reasons for interpretive consistency and the circumstances in which adherence to precedent might become important. Within the context of these situations, Part III then examines the impact of ad hoc interpretation of deviant language. Finally, Part IV recommends how courts should interpret deviant language, concluding that most cases should be governed by factors peculiar to the case and not by precedent

Eager to Follow: Methodological Precedent in Statutory Interpretation

An important recent development in the field of statutory interpretation is the emergence of a movement calling for methodological precedent --a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today. This Article shows that both sides have misapprehended the current state of affairs. The federal courts already display a substantial amount of methodological precedent. Commentators have underestimated its prevalence for a few reasons, some conceptual and some empirical. On the conceptual side, scholars are rarely explicit about what they believe methodological precedent entails, and some of their implicit criteria are incorrect. On the empirical side, commentators focus too much on the Supreme Court and a few of its fiercest methodological battles rather than viewing the federal judiciary as a whole. If one applies the right criteria and expands the field of view, one sees that we already have a federal interpretive system that is at least semi-precedential. Methodological precedent is most prominent in the lower courts, but there is unappreciated evidence of it in the Supreme Court as well. And there is reason to expect that methodological precedent will grow over time. Adopting a proper understanding of methodological precedent\u27s nature and extent has some implications for the normative debate over expanding the role of precedent in interpretive methodology. Some of the implications should hearten the proponents of methodological precedent. But the fact that the current level of methodological precedent has not received its proper due may show that its proponents\u27 real aims are unlikely to be satisfied even as methodological precedent expands and solidifies

Precedent and Reliance

Among the most prevalent justifications for deference to judicial precedent is the protection of reliance interests. The theory is that when judicial pronouncements have engendered significant reliance, there should be a meaningful presumption against adjudicative change. Yet there remains a fundamental question as to why reliance on precedent warrants judicial protection in the first place. This Article explores the dynamics and implications of precedential reliance. It contends that the case for protecting reliance on precedent is uncertain. There are several reasons why reliance might potentially be worth protecting, but all are subject to serious limitations or challenges. To bolster the doctrine of stare decisis while the status of precedential reliance continues to be worked out, the Article suggests a conceptual move away from backwardlooking reliance and toward the forward-looking interest in managing the disruptive impacts of adjudicative change for society at large

Thoughts on Rodriguez: Mr. Justice Powell and the Demise of Equal Protection Analysis in the Supreme Court

Continuity with the Warren Court jurisprudence is not a duty but only a necessity. The necessity is not to follow precedent blindly, but to explain the reasons for departure from it and to justify, again by reason rather than personal predilection, the results reached in every case