Tuesday, June 24, 2014

Is The Federal Circuit Patent-Friendly?

As a technology lawyer, I frequently hear complaints (generally from the defense bar) that the Federal Circuit is "so patent friendly."  There's a recent post by Timothy Lee at Vox.com about how the Supreme Court has to rein in the rogue Federal Circuit. Mr. Lee is apparently pretty vociferous about his opinion too, sharing it on the Washington Post and ArsTechnica. Many people share Mr. Lee's opinion, but why?

I did find one guy who at least said, wait a minute.  Are they really that patent-friendly? So are they?

So here's the simple question: Is the Federal Circuit patent-owner friendly like many people say? There seems to be a simple way to find out. Rather than ponder and wonder, why don't we just take a look at how the Federal Circuit actually rules on patent cases.  So I decided to do just that.

It was a bigger task than I envisioned, but I went to the Federal Circuit website and downloaded every patent-related decision they handed down so far this month (June). Then I read each one and simply determined whether (1) the lower court ruled in favor of the patent-owner or the accused-infringer, and (2) whether the Federal Circuit ruled in favor of the patent-owner or the accused-infringer. The results might surprise you, although they didn't surprise me.

In June of 2014 (through today, so far), the Federal Circuit has handed down 18 patent-related cases. So of those 18 cases, how many times did the Federal Circuit hold for the patent-owner?

Once. That's right, once. The score this month is 17-1 in favor of the accused-infringer.

So far, the actual evidence seems pretty overwhelming. For a court that is so patent-friendly, they sure seem to hide it well. If the patent-owner is likely to lose at a rate of 17-1, where is this so-called bias? And if there is in fact a bias, which side does it favor?

I plan to expand my research and check out more cases over a longer period, although it takes a fair amount of work. The Federal Circuit really likes its per curium Rule 36 affirmances, which of course don't say anything about the lower decision.

Monday, June 9, 2014

What Is Happening To Our Profession?

So lawyers really have a bad reputation. I've been practicing law for nearly twenty years, and I have often tried to tell myself that all the ill will towards my profession is undeserved. But I fear I'm fighting a losing battle. Ordinary people just don't trust lawyers.

And when I read articles like this one I wonder why they should. Before you read on, understand that I personally condemn this kind of conduct as the absolute antithesis of professionalism. I would never, even against my most bitter rival, ever employ such tactics.

So there's this defamation suit going on down in Florida.  Law firm of Adams & Diaco on one side; C. Philip Campbell on the other. I knew nothing about either firm before reading this article. I wish I still knew nothing about them.

Mr. Campbell, the lawyer for one side, was sitting in a bar one evening when along came the good Miss Personious to keep him company. By all accounts, Miss Personious was very flirty with Mr. Campbell, and tried to get him liquored up.  By the end of the evening, Miss Personious had convinced Mr. Campbell to drive her home in her car. So far, one would assume that Miss Personious was just a hooker.

As Mr. Campbell pulled out of the parking lot with an intoxicated Miss Personious in the passenger seat, he was pulled over by Florida's not-so-finest.  Mr. Campbell was charged with driving under the influence and arrested.

The absolutely shocking part of the story, which I left out until now, is that Miss Personious was not a hooker. She was a paralegal at Adams & Diaco; that's right, the law firm on the other side of the case from Mr. Campbell.

Coincidence?

Turns out it was not. Miss Personious had been plotting with the partners of Adams & Diaco all night--exchanging countless text messages and phone calls to report on the developments of the evening. Amazingly, one of the partners of Adams & Diaco had actually arranged for his friend at the Tampa Police Department to have an officer pull Mr. Campbell over as soon as he pulled out on the street in Miss Personious' car.

Hogwash you say. This can't be proven. This must just be the biggest coincidence in the history of coincidences. But actually, it's true. Phone logs and records confirm the events. There may have even been some admissions. I just can't believe anyone would be so spiteful, let alone an entire group of thugs and bandits.

These people don't deserve a law license. They don't deserve a driver's license. Anyone who thinks that these kind of tactics are the right way to do business just doesn't belong in polite society.

Link to charges against one of the partners, Adam Filthaut