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On May 30, 2014, Sharon Prost succeed Randall Rader as Chief Judge of the Federal Circuit, and earlier this month Judge Alan Lourie told us the "State of the Court" at the Federal Circuit Bar Association's 16th Annual Bench & Bar Conference.
Amidst all of this change and review for the court, last week Judge Randall Rader had his last day on the Federal Circuit bench and sent an open letter to his colleagues. Just a week later, criticisms of the Federal Circuit and its exclusive jurisdiction of patents are growing ever louder.
Judge Randall's Open Letter
Judge Randall Rader distributed an open letter to his colleagues in the Federal Circuit, and gave Patently-O permission to reprint the letter. In his letter, he thanked everyone he worked with, and recalled his days as counsel to the Senate Judiciary Committee, and his work to get the Federal Court Improvements Act of 1981 enacted. He reflected: "I took a seat on the court that I had helped to create. You can imagine my feelings of awe as I took a seat on the bench beside the legends ..."
He then closed with this:
With eyes misted over with magnificent memories, I will then turn my gaze to the horizon. I will hope to find new ways to contribute to the uniformity, efficiency, and predictability of the law. No matter what opportunities I receive in my next legal 'life,' I know that no honor can ever exceed the opportunity that I had to contribute to the United States Court of Appeals for the Federal Circuit. Thank you, brothers and sisters, for the vast honor of sitting at your side. God save this honorable court!
Growing Criticism of the Federal Circuit
It's interesting the Judge Rader closed his open letter with an appeal to "save this honorable court." Did he see the writing on the wall? We'd be surprised if he didn't.
One week after Judge Rader bid his farewell, The Wall Street Journal published an article detailing the criticisms of the Federal Circuit. Listing the "stats" of the court, the paper noted that in this just-concluded 2013 term, the Supreme Court "heard six appeals of Federal Circuit decisions, the most ever, and reversed the court's rulings in five of them."
One academic noted that the Federal Circuit's exclusive jurisdiction in patent law worked well -- at first -- but now patent law is getting muddled "partly because the Federal Circuit didn't have the luxury of 'peeking over its shoulder' to see how their colleagues across the country were dealing with basic issues," reports the Journal. Even Chief Judge Wood of the Seventh Circuit has argued in favor of ridding the Federal Circuit of exclusive jurisdiction in patent appeals, stating "The judges on the Federal Circuit are as capable as any in the country, but we'd be better off having a diversity of [judicial] viewpoints on patent law the way we do with nearly every other legal subject," quotes The Wall Street Journal.
While calls for change are being made, they are unlikely to come any time soon because it would require congressional action. Meanwhile, academics, judges and lawyers alike will continue to advocate for Fed Circuit version 2.0.
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