Judges Alarmed by Patent Law Proposals


Joseph Schuman
September 20, 2013

A dispute is brewing between the federal judges most experienced in handling patent infringement cases and members of Congress who want to weaken patent rights, in part by altering how infringement cases are managed in court.

Patent Truth has already reported on the worried and appalled view of the half dozen legislative drafts on Capitol Hill expressed by one former chief judge and the current chief judge of the U.S. Court of Appeals for the Federal Circuit, which handles the appeals of all patent cases.

This week, in a speech to the Intellectual Property Owners Association, Federal Circuit Judge Kathleen O’Malley expressed her concerns, suggesting the bills and draft bills are an uninformed and ill-conceived attack by the legislative branch on the authority of the judiciary. (O’Malley was a federal district court judge for a decade and a half before President Barack Obama elevated her to the Federal Circuit.) Specifically, O’Malley suggested that definition of the Federal Rules of Civil Procedure, which are defined by the Federal Judiciary rather than by legislative statute.

Patent Truth hasn’t yet seen a transcript of O’Malley’s discourse but has heard several concurring reports of what she said. The IPO itself posted a recap that included the following:

“She stressed the importance of independence for the federal judiciary and cautioned against interfering with a court’s exercise of its own authority. She said Congress should not be in the business of docket control, altering pleadings forms, or imposing” sanctions for frivolous litigation or other legal improprieties that have always been decided by a sitting judge handling a specific case.

Echoing judicial critics of the legislation who say the courts already have the tools to address possible problems in the patent litigation system, O’Malley said any needed reforms should go through the judicial rule-making process and be properly vetted by the judges who best understand how changes would affect cases.