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Twenty-five years ago, Congress created the Federal Circuit to establish a uniform national patent law. "However, the court's denial of rehearing en banc in Amgen Inc. v. Hoeschst Marion Roussel, Inc. showcases the increasingly public divisiveness and outright criticism among Federal Circuit judges," say Kevin Reiner and Angela Ni, attorneys with the intellectual property law firm Darby & Darby, P.C. (New York). They note that while at least eight of the 12 judges participating in the en bank Amgen decision agreed that the Federal Circuit's so-called "de novo/no deference" standard of review of district court claims construction should be revisited, the court still failed to take up the issue. Moreover, say Reiner and Ni, the Federal Circuit denied rehearing even though the majority of the full court expressly believes that the original panel majority's claim construction was a "major error." "This and other cases in the past few years raise the question of whether the Federal Circuit is able to address and resolve the many issues facing the U.S. patent system today, which is under historically unprecedented attack at all levels. For example, in July 2004, the Federal Circuit granted rehearing en banc in Phillips v. AWH Corp. and indicated that it would consider the deference issue. Yet two-and-a-half years later, the Court has yet to do so. One wonders whether the current state of affairs has factored into the number of recent patent cases upon which the U.S. Supreme Court has granted review. One also wonders what of the Supreme Court's deference to the Federal Circuit's 'sound judgment in this area of its special expertise' expressed in the its Warner-Jenkinson decision remains. The latter may be a key issue when the Supreme Court considers the Federal Circuit's 'teaching, suggestion, motivation' test for obviousness in the KSR v. Teleflex case currently before it." Reiner and Ni are available to write an article examining the efficacy of the Federal Circuit.
Channel: Jaffe Legal News Service - Articles for Publication
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