More CAFC Volleyball

The Supreme Court unanimously overturned the CAFC twice (again) this week, continuing to highlight how dysfunctional this court has become. The cases were Limelight v Akamai and Nautilus v Biosig.

You can read about the details of the cases if you like, but the key point is that the CAFC and SCOTUS continue to disagree about major elements of, and interpretations of precedents for, patent law. This runs directly counter to the purpose for which the Federal Circuit was created, which is bad news for litigants and application writers. However, the specifics of these two cases probably make no difference because they are just part of an ongoing "pissing match" as Greg Aharonian calls it between the two courts.

Aharonian, in his emailed PATNEWS newsletter, points out that in theory SCOTUS can direct the CAFC to decide cases according to its decisions but in practice there's no enforcement mechanism. This leaves the CAFC judges free to ignore Supreme Court mandates and suffer no consequences as a result. The losers, again, are the people who have to litigate these things because when CAFC renders a decision that contradicts SCOTUS instructions it's still up to the litigants to appeal back to the Supreme Court to correct the CAFC's error.

I'm not a lawyer and I have no idea what mechanisms exist that could help with this situation. I know that we have problems with bad patents and people abusing the patents that are issued, but even once those problems get fixed we will need a unified judicial voice to interpret patent laws in light of new scientific and technological advances as well as new social understandings. This? This is a disaster.