ABA Banking Journal - August 2014 - (Page 42)

legal issues BY THOMAS PINDER High court nixes five patent rulings Sandy Koufax may be known as a Hall of Fame pitcher, but as a batter he still holds the Major League record for 12 consecutive strikeouts. This year, Randall Rader, the recently retired chief judge of the Federal Circuit, suffered a worse batting record than Koufax when his court was unanimously overruled by the Supreme Court in five consecutive patent cases. Using the baseball illustration, the Federal Circuit's failure to garner a supporting vote from any of the nine justices means the Federal Circuit swung and missed 45 times, resulting in 15 strikeouts. The Federal Circuit has been notoriously generous to patent trolls, so the strikeouts tallied by the Supreme Court were a boon to bankers. The U.S. Court of Appeals of the Federal Circuit has exercised exclusive jurisdiction over patent appeals since 1982. Judge Rader was nominated to the court in 1990 and became chief judge in 2010. The court's patent-troll friendly rulings may stem from its reputation for closely fraternizing with the patent bar, which is comprised of attorneys who generally favor patent holders. Judge Rader retired in June because his judicial ethics were questioned after he sent a laudatory email to a patent attorney who regularly appears before the court. The email said the attorney was "IMPRESSIVE in every way," and was signed, "Your friend for life." Judge Rader recently conceded the email was unethical and "inexcusably careless." This year, the Supreme Court apparently had enough and began limiting the power of patent holders by reversing the lower court's patent-troll friendly decisions. First, the Supreme Court overruled the court in Octane Fitness v. Icon Health and Highmark v. Allcare by making it easier for prevailing parties in patent litigation to obtain legal fees from the losing party under 35 U.S.C. ยง 285 (2012). This means banks that defeat patent trolls in court will have an easier time recovering attorneys' fees. In Nautilus v. Biosig and Limelight v. Akamai, the Court held the Federal Circuit should be more critical of patents by requiring that claims in a patent be more definitely described. The Court also ruled a patent holder may not allege infringement by a group if no single user utilizes the entire patented method, making it harder for patent trolls to enforce complicated method patents on a group of businesses. The Court even questioned the Federal Circuit's competence by concluding the Federal Circuit "fundamentally misunderstands" the meaning of patent infringement. The Federal 42 | ABA BANKING JOURNAL | AUGUST 2014 Circuit swung and missed again in Medtronic v. Boston Scientific when the Supreme Court reversed the court and held the alleged patent holder and not the alleged infringer must prove infringement. Despite Koufax's still unbroken strikeout record, he was the youngest player inducted into Cooperstown's Hall of Fame. Judge Rader's rock band, DeNovo, still tours and perfor ms Rolling Stones cover s at patent-law conferences. He stated, "[R]ock music is energy . . . And we like to project that energy." Maybe that energy will propel DeNovo into the Rock and Roll Hall of Fame, and make the Federal Circuit strikeouts a distant memory. Thomas Pinder (tpinder@aba. com) is vice-president, litigation, for the ABA. PHOTO: SHUTTERSTOCK.COM Troll-friendly circuit judge's departure a boon for banks http://www.SHUTTERSTOCK.COM

Table of Contents for the Digital Edition of ABA Banking Journal - August 2014

Chairman's View
Editor's Column
The Economy
Bank Notes
Picture This
Community Banking
Why HCE could be a big payment plus for banks
Rethinking the branch experience
Social media success not all about "followers"
Compliance Clinic
Around the ABA
Legal Issues
First Person

ABA Banking Journal - August 2014

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