Professor Robin Feldman is quoted in a Law360 in-depth feature article entitled “The Battle for Patent Law.”

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“'Congress was particularly concerned about inconsistency in how appellate courts upheld or overturned the validity of patents,' said Robin Feldman, director of the Institute for Innovation Law at the University of California, Hastings College of the Law. 'The hope was that a specialized court could bring rationality and coherence to the body [of patent law].'"

"According to Feldman, the Supreme Court is turning to more patent cases not so much from a concern about bright-line rules as it is about making sure the Federal Circuit’s rulings are grounded in the statute and logically consistent. 'An isolated court, speaking its own scientific jargon, can easily lose its way,' she said. 'Judges wrap themselves in the technical aspects of a case, providing camouflage for the failure to resolve issues in a coherent manner.'"

"In addition to its decision in Akamai, the Supreme Court’s ruling in Bilski v. Kappos in 2010 chided the Federal Circuit for adopting the machine-or-transformation test as the sole test for determining whether a process was patentable, and at one point, the majority’s opinion stated: 'Nothing in today’s opinion should be read as endorsing interpretations of Section 101 that the Court of Appeals for the Federal Circuit has used in the past.' The remark was an especially strong rebuke of Federal Circuit jurisprudence, according to Feldman. 'It says to the Federal Circuit, ‘We don’t trust you to get it right,’ ' she said."

"Federal Circuit Judge Evan Wallach noted in the opinion, 'We may now steer by the bright star of ‘reasonable certainty,’ rather than the unreliable compass of ‘insoluble ambiguity’ ' — a reference to the high court’s remark that the latter standard 'can leave courts and the patent bar at sea without a reliable compass.' Such snarkiness from the lower court has not gone unnoticed by court watchers. 'One does not normally see a Federal Circuit judge thumbing his nose to the Supreme Court in an opinion,' Feldman said. 'The Federal Circuit response [to increased Supreme Court activity in patent cases] … is sometimes just shy of being downright disrespectful.'"

“'Although the Supreme Court had told the Federal Circuit to get out of the game [in Octane], the Federal Circuit used a bullhorn on remand to tell trial courts what to do,' Feldman said."

"The Federal Circuit’s response to heightened Supreme Court interest in patent cases is mixed, according to Feldman, showing reluctance to fall in line on some occasions and an effort to follow Supreme Court dictates at other times. 'I think the Federal Circuit seems to feel like: ‘We know what we’re doing. The Supreme Court doesn’t. So leave us alone,’ ' she said. 'The Supreme Court is not interested in that approach.'"

The full article can be viewed here.

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