It's about the same.
At least one of the newly appointed (in the past 3 years) judges is rabidly pro-patent
In this case, the decision is by chief judge radar, who believes the court's goal should be to strengthen intellectual property protections.
How do i know this?
He told me (and the rest of the class) this, when I took his class on the federal circuit in law school many years ago.
Silly me, of course, always thought courts were there to decide law, not have policy goals.
In any case, this is one of a long line of the federal circuit giving the middle finger to the supreme court.
Judge radar and others basically believe the supreme court is not helpful to them when they are trying to create rules practitioners can follow, so he tries to ignore them when possible.
He also cites his completely ridiculous reasoning from CLS Bank:
At bottom, with a claim tied to a computer in a specific
way, such that the computer plays a meaningful role in the
performance of the claimed invention, it is as a matter of
fact not likely to pre-empt virtually all uses of an
underlying abstract idea, leaving the invention patent
eligible
I'm not even sure how he can say this with a straight face.
Preempting virtually all uses of the underlying abstract idea is a rationale for not making abstract ideas non-patentable, not the test for what is a non-patentable abstract idea.
There is nothing unbiased about having a judicial philosophy. "Bias" means you unfairly favor one party in a particular case over the other. Lack of bias does not require that you approach each case as a tabula rasa.
For example, I imagine lots of people on this website would be happy if a judge took an expansive view of the 4th amendment and asserted that was important for courts to strengthen 4th amendment protections. And that would be totally okay.
In the theoretical world where ethics is as it is on the bar exam: Maybe? Hard to say, you'd probably need a bit more facts. i'm sure with enough data from speeches he has given, yes.
However, In the real world, where manufacturing evidence against people gets you nothing, or repeatedly encouraging clients to lie under oath, and helping them, gets you suspended for 9 months (http://overlawyered.com/2013/05/n-y-p-i-lawyers-are-suspende...), no, it would not make any difference.
(I agree, btw, that maryland would have disbarred those guys. I'm licensed there, and it's one of the few states that takes ethical obligations seriously)
In this case, the decision is by chief judge radar, who believes the court's goal should be to strengthen intellectual property protections.
How do i know this?
He told me (and the rest of the class) this, when I took his class on the federal circuit in law school many years ago.
Silly me, of course, always thought courts were there to decide law, not have policy goals.
In any case, this is one of a long line of the federal circuit giving the middle finger to the supreme court. Judge radar and others basically believe the supreme court is not helpful to them when they are trying to create rules practitioners can follow, so he tries to ignore them when possible.
He also cites his completely ridiculous reasoning from CLS Bank:
I'm not even sure how he can say this with a straight face.