Waning Trust in the Judiciary is Threatening Our Nation’s Reputation as a Beacon for Justice
“Litigants must have confidence that the judges will be governed by the principles of reason, morals, ethics, and fairness that are the foundation of justice. When a court abandons these values, we should all be concerned.”
Judge Pauline Newman delivered the following remarks at IPWatchdog’s Patent Litigation Masters 2024.
Left to right: Judge Pauline Newman, Judge Paul Michel and Judge Randall Rader.
IP litigation is becoming more and more complicated—and more and more interesting. It is most important—extremely important to the nation, and all nations—that advances in technology be accompanied by full and fair dispute resolution and by fair and just law. Justice—this is where the judges come in.
The target of litigation is the judge. The judge will decide who wins and who loses—that’s what judges do. These elaborate techniques we’re talking about at this meeting have only one purpose—to persuade the judge that you’re right and the opponent is wrong.
There is a heavy responsibility on the advocate. Aristotle said the advocate must start with human character, with human emotions, accompanied by logical reasoning. But the judges must decide—based on reflection, calling on all our experience, as well as the past experience shown in precedent—to serve the exercise of judgment.
As judges, our focus is on the substantive law. There are occasional issues of due process and other procedures, but those issues—even when they warrant judicial attention—are unlikely to affect the march of human existence, whereas the advance of technology can have a major impact on humanity.
That is where the Federal Circuit comes in. This court has the last word in most disputes concerning patents. Its position, its view of policy, its reliability and wisdom, can directly affect the nation’s progress into the technological future.
Even where the Supreme Court has entered the arena, it befalls the Federal Circuit to apply any new principles stated by the Supreme Court to the extraordinary variety of technologies and issues, in the present and in the unforeseeable future.
This is especially important in deciding close questions, for a judicial decision on closely balanced facts can lead to broad statements and sweeping precedent. In my view, this has led to some of today’s flawed Federal Circuit rulings, most conspicuously in Sections 101 and 112.
Today’s new technologies are dramatic, and their promise for the future is powerful. Although today’s economic conditions don’t match the conditions of recession that led to creation of the Federal Circuit, I suggest that the need for review has arisen again.
At the time the Federal Circuit was spawned, the United States had the lowest rate of growth of technology-based industry, of any industrial nation. We had the highest percentage of obsolete plants, the lowest percentage of capital investment, and the lowest growth in productivity and savings of any industrial nation.
After extensive study, most effectively by a two-year study called the Domestic Policy Review of Industrial Innovation, under President Jimmy Carter, the nation made several changes in the governmental framework for industrial innovation. This included changes in the tax law, in antitrust understanding, and related to the patent system.
I was a participant in this Policy Review. We foresaw a new industrial age, based on technology that had matured after World War II. We stressed the importance of patent principles, and we stressed the need for a reliable, predictable patent.
Patent-related legislative actions included the Bayh-Dole Act for commercialization of government-supported research, the Hatch-Waxman Act for pharmaceutical products, and the first change in judicial structure since inception of the circuit courts.
At that time the regional circuit courts had marked differences of policy and precedent concerning patents. Industry blamed this on a flawed understanding of how science and research worked.
The Federal Circuit was formed to remedy that defect—to produce uniform and reliable national law, based on a solid understanding of how industrial innovation works, through investment in R&D and commercial prospects.
It was expected that this new court would continue the understanding and wisdom of its predecessor courts. And it did so. There was a dramatic resurgence of technology-based industry, and confidence in the court that was created to administer those laws.
The Federal Circuit got credit for pulling the nation out of recession and moving the nation into world leadership in technological innovation.
Much was said about our nation’s international leadership as a model of judicial integrity, of justice under law, again praising the Federal Circuit.
For the first two decades of its existence, the Federal Circuit’s decisions in all the areas assigned to it produced stability, predictability, and wisdom. New judicial areas were added, including appeals from the newly formed veterans court, and vaccine injuries by way of the Court of Federal Claims.
Meanwhile, technology was advancing, and patent litigation was encountering new issues as digital technology developed. A study was again initiated, and after some ten years of discussion and debate and legislative hearings, there was enacted the America Invents Act (AIA).
The purpose of the AIA was to restore a reliable patent system through a new administrative process—including a system of estoppel in the trial courts for patents that went through this new administrative examination process.
There has been a marked downturn in patent infringement suits since then. In 2012, there were 6,497 patent cases filed in the district courts, and in 2022 there were 3,630. The number of appeals to the Federal Circuit have dropped.
This reduced activity does not change the responsibility of the Federal Circuit. The court sits at the pinnacle of patent jurisprudence—to state the law correctly, wisely, and justly.
All the tribunals that are making decisions about patents are applying the law announced by the Federal Circuit—if anything, the burden on the court has increased, for a vast number of adjudicators are attempting to apply the law as we have announced it.
In my view, the Federal Circuit has erred in some areas of law. I think the most important error is in subject matter eligibility/ section 101.
When an inventor or investor is told by a patent attorney of the uncertainty of judicial support if his invention is successful in the marketplace and is copied, that’s a factor in whether the invention is developed and marketed.
The cost of patent litigation is a factor in all investment decisions and in the present climate of judicial unpredictability, it can be dispositive. The loser is not only the loss of commerce and productivity—the loser is also the public that is deprived of the technological advance.
That’s what the Federal Circuit was supposed to remedy, in the interest of the national and international strength and leadership. If the Federal Circuit is failing in this responsibility, it’s of national concern.
Technology is at a stage of rapid—and fascinating—development. The new questions reaching the court are not always easy. When I thought the court had slipped in its decisions or reasoning, I said so.
My criticisms were not well received, for my colleagues have responded by suspending me from the bench. In defiance of the Constitution, I have not been permitted to hear any appeals for over a year.
Our nation’s strength is its commitment to justice. Litigants must have confidence that the judges will be governed by the principles of reason, morals, ethics, and fairness that are the foundation of justice. When a court abandons these values, we should all be concerned.
The Federal Circuit is doing irreparable damage to the judicial reputation for objectivity and justice. The injury is not only to me, but to the nation. I leave you with this disturbing thought.
