"[Paul Clement, former Solicitor General now at Bancroft PLLC] ... reminded the audience that in the seven patent cases decided in the past five years (including eBay Inc. v. MercExchange, L.L.C., KSR Int'l Co. v. Teleflex Inc., MedImmune, Inc. v. Genentech, Inc., Microsoft Corp. v. AT&T Corp., and Quanta Computer, Inc. v. LG Electronics, Inc., excluding Bilski v. Kappos) the Court ruled 59-2 (with 2 recusals) against the Federal Circuit. Thus, this term is the anomaly he said, particularly when it is remembered that the Court reverses generally about 70% of the time." [emphasis added by LawPundit]In spite of that above-noted severe reversal record of the Federal Circuit, former Federal Circuit Chief Judge Paul Michel showed signs in the panel session that he still has not successfully resolved the role of patent law vis-a-vis U.S. constitutional law. Noonan writes:
"Judge Michel then asked the panel whether the Supreme Court utilized what he called its "constitutional law mode" of decision-making when deciding patent cases, invoking multifactor weighing tests that result in there being no answer to any question until the Court has opined. He noted that in his view the consequences of this way of addressing patent cases ignore the reality that most of what happens in patenting does not happen in court, but in the real world where clients need guidance with predictability if not certainty about what they can do and what they cannot do."To repeat in short form, Michel thus derogatorily categorizes U.S. Supreme Court decisionmaking as utilizing "constitutional law mode ... to ignore the reality of what happens in patenting ... in the real world where clients need guidance with predictability if not certainty ...."
One might point out to Judge Michel that "constitutional law mode" is the job of the U.S. Supreme Court, and no other. The Supremes are paid to interpret the Constitution and are the final word on that score. They are not handmaidens to inventors, nor guarantors of patent certainty.
The idea that the Federal Circuit should provide patent certainty to inventors is a novel view of patent law and to this observer is surely one reason why the Federal Circuit has been reversed time and time again in the past, seeing as how that paternalistic view of the role of the Federal Circuit is much more a legislative one rather than a judicial one.
The Federal Circuit was not called into life to provide patent certainty "to patent clients", but rather to determine whether the alleged patents of those "clients" are valid and whether they rightfully deserve the monopoly protection of the patent laws. Apparently that has not been done.
The only thing that should be certain is that a real invention will be protected by the law and everything else NOT.
In confusing the Federal Circuit's JUDICIAL role with norm-making legislative duties, the Federal Circuit Court has gone astray, and continues to do so in the Court era since Michel, apparently seeing itself as a legislative-type body, rather than as a judicial case-deciding one.
Correctly seen, the Federal Circuit should properly understand that it does not "make" patent law, rather, it "applies" patent law.
That is a significant difference in duty.