Ed Reines was out on the hotel deck looking like a proud father Friday afternoon as the guests mingled at the first-ever Federal Circuit Bar Association Bench & Bar Conference focused on Silicon Valley. We're in Monterey, about an hour away from the valley, and close enough to the fires in Big Sur that a faint smell of smoke hangs in the air.
On the star-heavy guest list were several district judges who handle lots of patent cases, chief patent lawyers from valley heavyweights like Apple, Google, and Cisco, and several Federal Circuit judges, including Chief Judge Paul Michel.
"A lot of conferences are pulp, but we strive to make this a conference for the sophisticated,” said Reines, a Weil, Gotshal patent litigator and current FCBA president. The conference represented a “coming of age of the IP bar nationally."
The Federal Circuit and the Patent Bar
Maybe lawyers were intimidated by the presence of so many judges, but the Thursday morning panels struck me as a bit quiescent, though there was a brief back-and-forth about software patents that I noted to my colleague at The Recorder.
But today, three Federal Circuit judges—Chief Judge Paul Michel, Judge Randall Rader and Judge Richard Linn—were provocative, engaging and at times funny as they spoke to an audience of more than 100 patent lawyers.
Sitting on the nation’s top patent court sounds a bit like reading a series of never-ending homework assignments that are… well, let’s say not always that fun. But in some ways, we learned, it’s a life of excess. Here are a few notes on what the appellate judges had to say that practitioners should find interesting.
Too Many Words
“We have so much to read,” said Chief Judge Paul Michel. Not that he’s complaining; every day at the Federal Circuit is “fun, interesting and worthwhile.” But oh, those appeal briefs… often, they’re “full of obscure, super-complicated arguments that aren’t necessary… I’m aghast at how totally unreadable 80 percent of it is. If you gave it to a high school English teacher they would just mark it up with a red pen.”
Judge Richard Linn agreed; the briefs are long. “Time and time again we get to the end of briefs and we see the word count and it’s 13,964.” (Briefs at the Federal Circuit have a limit of 14,000 words, so that old college trick of changing your spacing doesn't work.)
Too Many Arguments
“To win you only have to find one reversible error,” pointed out Judge Randall Rader. “If you have 10 reversible errors [in your brief], maybe you’re not that confident in one. You’re betraying some lack of confidence… you have to think of how your own actions betray the weakness of your positions.”
Too Much Claim Construction
Judges who resist construing massive numbers of claims should be reassured that the Federal Circuit seemed ready to support them if they impose limitations. (Northern California has new patent rules that urge the parties to agree on the 10 most important claims at issue in a case.)
"The idea that plain and simple English words routinely need restatement in [claim] construction” isn't accurate, said Chief Judge Michel. Often the claims construed don’t end up being that important in deciding the case. ("not case dispositive," as the lawyers say.)
Too Much Spin
“Overstatement and spin in my book are not the hallmark of good advocacy,” said Chief Judge Michel. When he reads a brief, he sometimes wonders, “Is this really what the expert witness said, or is this a spin version of what the expert witness said?”
He continued: “It’s the plague of our circumstance that most briefs are not really trustworthy. And they could be and they should be. I can't emphasize enough the importance of candor. We have to be fair and you have to be accurate... Fear is what’s poisoning the well. Fear that if I’m not super-aggressive, the client will go to a firm that is super-aggressive… But fear is something we all have to live with.”
He concluded that the patent bar should “resist the fear factor, and express yourself with complete candor and accuracy.”
Too Much... Wikipedia?
There was some discussion about the use of outside technical experts, sometimes used by trial courts in patent cases. Both Chief Judge Michel and Judge Linn said they don’t rely on such experts when deciding cases.
“In terms of going beyond the record, I just don’t do it,” said Chief Judge Michel. “I just don’t depend on anything beyond what lawyers say and what trial court has to say… I don’t go on the Internet to learn about the technology. I just read the briefs.”
“That’s reassuring,” said moderator Joseph Re, a partner at Knobbe Martens in Orange County. “When I was a law clerk there were no computers. It made it a lot easier to not go on the Internet.” [crowd laughs]
“Did you have hair then?” joked Judge Rader.
“This is what patent law does!” said Re, stroking his head.
“Well, I’m an English major,” said Judge Rader, running his hand through his own (movie-star-quality) hair.
“If you’re an English major, don’t you get tempted by Wikipedia?” asked Re.
“Yes, I do,” said Judge Rader with a smile.
Next up: Google patent counsel Michelle Lee on last year's explosion in litigation.