I Fought the Law

Gonna Larn You Some Patent Law

I call it subtle, Dr. M calls it "obscure," but I think we both agree on one thing: unfunny!

The (corpulent) butt of the joke in this strip could be any of America's growing number of high-falutin' patent law professors, who think that learning the philosophical underpinnings of patent law is more important than learning how to be a patent lawyer (or judge). But for the specific incarnation I chose Mark Lemley, Stanford Law School's favorite patent professor, controversially pilfered from Boalt a few years ago with promises of private school paychecks, proximity to his wife's place of employment, and all the Doritos he could eat. Lemley "visited" Stanford while I was at Boalt, promised that he would return the following year, and then didn't. Lemley is not a very popular fellow among the Boalties.

Turning to the other aspect of the strip -- The House of Representatives recently passed H.R. 5418, "To establish a pilot program in certain United States district courts to encourage enhancement of expertise in patent cases among district judges." The pilot program would involve a handful of District Courts and allow district judges to request to be designated as "patent judges," with all patent cases in those districts going to those judges. The bill also earmarks funds for special training programs for the judges and their clerks, to help them understand the delicate mysteries of patent law. Hopefully these programs won't be run by actual patent law professors, elsewise we might start seeing claim construction orders posing the question of whether we really need intellectual property protection anymore.

We already have a specialized federal court of appeals just for patent cases, that reversal factory known as the Federal Circuit. The thinking behind the House bill appears to be that there will be fewer reversals at the Federal Circuit if district judges have more expertise in patent law. Prudential considerations regarding my current state of employment prevent me from fully voicing my opinions on this issue, but let's just say I'll be keeping an eye on things to see how this pans out.

Posted by hb at November 2, 2006 08:51 AM