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“[In the early days of the Federal Circuit], it was the entire ethics of the court docket to be predictable and constant and to not have interaction in policymaking on a private stage. Now, judges need to reshape the regulation.” – Decide Paul Michel
Gene and Renee Quinn with Judges Paul Michel (second from left), Pauline Newman and Randall Rader.
“Make it occur.” That was the request U.S. Court docket of Appeals for the Federal Circuit (CAFC) Decide Pauline Newman made from attendees of IPWatchdog’s Patent Litigation Masters 2024 program on Monday, imploring them to “assume creatively” to resolve the mental property issues of as we speak. Pointing to developments such because the Unified Patent Court docket (UPC), Newman mentioned “it’s a time of change and flux, and we will be taught a superb deal, not solely from the UPC, however the best way the regulation is growing in jurisdictions like Japan and China.”
The Pleasure is Gone
Newman spoke on a panel with retired CAFC Chief Judges Paul Michel and Randall Rader, who echoed her sentiment that the Federal Circuit has misplaced its method lately. Michel particularly criticized the court docket for having nearly by no means gone en banc in a elementary patent case within the final decade, calling it a “dereliction of obligation.”
All three judges lamented the Federal Circuit’s present lack of a unified voice on elementary problems with patent regulation, which Michel attributed partially to the shortage of en banc selections, explaining that within the early days of the court docket, the judges went to nice lengths to convey certainty and predictability. Within the earlier years of the CAFC, which was established in 1982, “it was the entire ethics of the court docket to be predictable and constant and to not have interaction in policymaking on a private stage,” Michel mentioned. “Now, judges need to reshape the regulation.”
Decide Rader famous that the court docket even generally went en banc sua sponte throughout his tenure, which partially overlapped with Decide Michel’s. Rader recalled how, within the early Circuit conferences of the CAFC, there can be 2,000 or 3,000 individuals within the audiences “and there was such enthusiasm for what the CAFC was doing.” He added: “I don’t hear that type of pleasure anymore…. Now we want umbrellas; we’re below a cloud of rain.”

Gene Quinn (far left) with Stephen McBride of sponsor Carmichael IP and Patent Litigation Masters Co-Chair Scott McKeown of Diamond Sponsor, Wolf Greenfield (far proper).
Know Your Viewers
On the ultimate day of this system, one session lined “Profitable and Dropping on the Federal Circuit,” the place panelist Matthew Dowd of Dowd Scheffel cited Federal Circuit statistics exhibiting that simply over half of appeals on the CAFC in FY 2023 have been patent-related, and the general probabilities for all circumstances of getting a loss in a decrease tribunal reversed was 13%. There was a 1 in 6 probability of getting a call reversed on attraction from the district courts and an 8-10% probability of getting a call absolutely reversed on attraction to the CAFC from the Patent Trial and Attraction Board (PTAB). “That’s a reasonably daunting statistic,” Dowd mentioned.
One other panel on Wednesday mentioned profitable and dropping on the PTAB, the place the possibilities of patent house owners profitable is equally daunting. Lots of the panelists mentioned probably the most widespread errors made there’s that patent house owners typically overlook who their viewers is. “I nonetheless see patent house owners coming in making an attempt to play to a jury,” mentioned Scott McKeown of Wolf Greenfield, who co-chaired the Litigation Masters program because the Diamond Sponsor. The Board can’t do something with tales about how nice the patented invention is, McKeown defined. “In entrance of an knowledgeable company, it might probably’t work.”

Matthew Dowd shared CAFC statistics on appeals.
Earlier within the convention, McKeown additionally weighed in on the unpredictability injected into litigation by the U.S. Patent and Trademark Workplace (USPTO) on a broader scale. “The patent workplace makes hamburger and you need to litigate filet mignon,” he mentioned.
Stephen Schreiner of Carmichael IP, which additionally sponsored the Litigation Masters Program, agreed with McKeown that profitable on the PTAB requires understanding the distinction between it and different boards. Schreiner urged attendees to “know your viewers” and to verify petitions and responses are directed to administrative patent judges who’re scientists and engineers with superior levels and technical expertise. “These are the individuals which might be going to be studying the briefs and evaluating your arguments,” Schreiner mentioned, so events ought to “deal with the great things” and ensure their arguments aren’t shaky.
Harnessing Hope
The theme of uncertainty and unpredictability permeated many classes at Patent Litigation Masters this yr, together with these on the Worldwide Commerce Fee (ITC), injunctive reduction typically, customary important patent (SEP)/ FRAND litigation, patent damages, and extra.

Decide Michael Fleuchaus (left) and Volkmar Henke of Bardehle Pagenberg on a panel in regards to the UPC Tuesday.
Maybe the one discussion board that panelists and attendees appeared to trust in in the meanwhile was the Unified Patent Court docket (UPC), which has been working since June 1, 2023. Whereas the court docket was a long time within the making, these in attendance appeared constructive in regards to the UPC judges’ in depth technical expertise and the best way it’s working thus far. Panelists have been additionally very constructive about patent proprietor probabilities in Brazilian courts, the place injunctions are issued pretty often and predictably.
Sadly, the outlook for the U.S. patent litigation system was a lot darker. Decide Michel reiterated his often-stated view that “the one rescue of the patent system goes to have to return primarily from the U.S. congress.” Michel has been very involved in selling payments just like the Patent Eligibility Restoration Act of 2023 (PERA) and the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act to additional that purpose.
“There’s an essential function for the courts nonetheless, however I feel we want intervention from the Congress,” Michel mentioned.

Judges at lunch.
A 3rd invoice that may deal with the broad unavailability of injunctive reduction since eBay v. MercExchange is anticipated to be launched later this yr, in line with IPWatchdog sources.
As unsure because the patent panorama could also be although, Decide Newman had an empowering message for attendees about methods to create change and transfer ahead into a brand new period of patent regulation. “This can be a very fascinating time to be on this enterprise,” Newman mentioned. She added:
“It’s a brand new ballgame at a time of such dramatic promise within the new applied sciences. It might be a mistake to not apply essentially the most inventive considering we will provide you with. To the extent there’s a probability at this convention to discover the problems and presumably take motion, that’s what it’s all about; the way forward for the nation is in our fingers.”
Judges Newman, Rader and Michel pose below their IPWatchdog Masters Corridor of Fame sketches:
Be part of us for the subsequent IPWatchdog Masters Program, Patent Portfolio Administration Masters, June 24-26. Register here today.
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