Judge Rader: Real World Context for Patent Debate


Joseph Schuman
April 15, 2013
Patent Law Scales

It is not an easy time to be the top American judge for patent litigation.

The system that has protected inventors’ rights and nurtured innovation since it was envisioned in the Constitution is under fire from academics with theories about its potential harm to Silicon Valley and policy makers in Washington who cite headline-making lawsuits as a reason to weaken patent protections.

“The patent system is being blamed for a lot of things it’s not designed to do,” Judge Randall Rader, chief of the Federal Circuit Rader said Thursday during a forum held by the Federalist Society. “Patent law has one purpose … to produce new and innovative technology.”

But at the moment, that mission is threatened by a chorus of accusations that patents are responsible for litigation abuse.

“If there’s litigation abuse you deal with the problem. You don’t eviscerate the property rights system, which has been the strength and the backbone of the American economy,” Rader said. Asked if he has seen any evidence of systemic problems in patent lawsuits, he replied: “Absolutely none.”

Rader’s comments echoed recent remarks from his retired predecessor as chief judge of the Federal Circuit, Paul Michel, who has become increasingly vocal about the risks Congress would be taking if it passes legislation that weakens patent protections in the name of tackling a much broader litigation phenomenon.

In 2011, the most recent year statistically tallied by the federal judiciary, there were just 3,872 patent lawsuits filed in U.S. district courts out of the 294,336 civil cases filed overall.

Both Rader and Michel argue that Congress should let the judges who best know the situation deal with what doesn’t work.

“The problem of abusive litigation tactics can be efficiently handled by existing authorities under the patent act and the federal rules of civil procedure,” Michel recently told an audience in Washington.

And like Michel, Rader said the anti-patent ideas circulating on Capitol Hill are misguided in part because they target certain kinds of patent holders instead the broader litigation landscape.

“Whenever you try to mete out justice and assign rights based on characteristics of parties rather than the merits of the litigation, you’ve gone astray,” Rader said. “We don’t do this in our justice system. Any judge will tell you, you don’t decide that someone deserves more or less protection because they’re a big company or a small company or a domestic company or a foreign company or of a different race or a different ethnicity. We try to eradicate those irrelevant criteria from the process and decide it on the facts and the law.”