The Fed Circuit fails at patents.

The state of patent law in America is this: You might as well appeal because if you get lucky and draw the right panel you will win. And like it or not, that is precisely what our patent justice system has become under the Federal Circuit. A crapshoot. And we all know it to be true.

The current state of utter disarray at the Federal Circuit, with panels doing whatever they want, judges not agreeing on anything, and ignoring en banc decisions as if they never happened isn’t what the Federal Circuit is meant to have become. The Federal Circuit is a disaster and the collective unwillingness of the judges to come together is making a mockery of an institution that is a critical piece in the U.S. innovation system. Indeed, the fact that the Federal Circuit is absent and unwilling to provide predictability and certainty, which literally was their only job, is why so many people are turning to Congress to solve the problems of the patent system.

The Federal Circuit is the entity within our system that the patent community has turned to for help since 1982, but they are not present currently. The Federal Circuit is so afraid of being overturned by the Supreme Court that they have lost their ability to distinguish even easily distinguishable cases. After all, Mayo dealt with an exceptionally poor claim where the Supreme Court took a shortcut using 101 instead of using 102 or 103. In Alice, they were told by the patentee’s attorney it was a trivial piece of software that could be coded over a weekend by a college student. These cases are easily distinguishable from any life sciences innovation of consequence or something like artificial intelligence or autonomous driving, for example. Yet, the Federal Circuit has expansively read these cases despite the explicit language of the Supreme Court telling them to narrowly read the cases lest all of patent law would be swallowed.