Archive for the ‘Miscellaneous’ Category
Before stepping down as Chief Judge of the Fed. Cir. on May 30th, Judge Rader had sent a letter to his colleagues on the court apologizing for sending an email to an attorney who had appeared before the court a number of times, praising his work and encouraging him to circulate the email to his associates. (A copy of the letter is available at the end of this post.) The letter was dated May 23, 2014, and was clear about the error of his ways:
“I realize in retrospect that the email constituted a breach of the ethical obligation not to lend the prestige of the judicial office to advance the private interests of others. I apologize for that error, which may have led to the perception that the attorney in question was in a position to influence me in my performance of judicial duties….Working with the court, I have taken steps to remedy the breaches for which I was responsible by recusing in cases as to which a question might be raised as to my impartiality. I am committed to adhering carefully to the requirements of the Code of Conduct for United States judges in making any necessary recusal decisions. I am truly sorry for the lapse and will work diligently to ensure that it does not recur….”
Which actually seems a bit surprising, since this life sciences blog is pretty much the observations of one patent attorney – me - on developments in IP law. I do want to take the time to thank my fairly regular guest commentators – particularly Stephan Danner, Bill Bennett, Ron Schutz and Paul Cole. But, apart from Bryan Ness and Mary Hirsch here at SLW, who do a great job of getting posts up there quickly, often before some of “bigger” blawgs can react, I am pretty much the only “journalist”—as one young interviewer called me—on the staff.
I was thinking of how to summarize the last half decade of IP law in a few paragraphs, but it’s really not possible. Most of the important judicial decisions, as well as the AIA, have amounted to cut-backs – or at least, sequestrations – of patent rights. I think that the PTO does not want to be judged or legislated out of business, and I have to give them credit for not over-reacting to largely policy driven decisions like Bilski, Mayo, and Myriad. But give a workman, or a bureaucrat, a new tool and they are probably going to use it. Ariad is such a tool and both the PTO and the courts have been using the WDR like Thor’s hammer to crush patents with both “mechanism of action” claims and ill-defined elements. Of course, a bright spot among this carnage was the Thersense decision that obliterated Rule 56(b) – but where are the final rules? The administration of the PTO is on hold as 2014 begins.