How a rogue appeals court wrecked the patent system
In 1972, the Court of Customs and Patent Appeals (CCPA) got a new chief judge named Thomas Markey. At Markey's investiture ceremony, patent attorney Donald Dunner spoke of the "anguish of the patent bar about the treatment of patents in various federal courts." The CCPA, a DC-based court that heard appeals from the US Patent & Trademark Office, was considered to be relatively pro-patent—but other federal appeals courts had jurisdiction over actual patent lawsuits and tended to be friendlier to patent defendants. Even worse, in Dunner's view, the Supreme Court itself seemed unfriendly to patent holders.
This sad state of affairs made it a bad time to be a patent attorney. Because patents were frequently invalidated by the courts, companies filed many fewer applications for them than they do today. Patents were seen as a backwater in the legal profession. Dunner urged Markey to inspire "his associates on this bench to spread the patent gospel to their sisters and brothers on the other federal benches."
A decade later, the patent bar's anguish would turn to joy as Congress merged the CCPA with another court to create the US Court of Appeals for the Federal Circuit. The Federal Circuit would be just as patent-friendly as the CCPA, but unlike its predecessor, the Federal Circuit was handed jurisdiction over all patent appeals, including the lawsuits that had previously been handled by other courts. On October 1, 1982, Judge Markey became the chief judge of the new court and set to work to remake patent law.
No institution is more responsible for the recent explosion of patent litigation in the software industry, the rise of patent trolls, and the proliferation of patent thickets than the United States Court of Appeals for the Federal Circuit. The patent court's thirtieth birthday this week is a good time to ask whether it was a mistake to give the nation's most patent-friendly appeals court such broad authority over the patent system.
http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appeals-court-wrecked-the-patent-system/
