By Andrew Dhuey
“I’m following your case at the Federal Circuit – would you please send me a PDF of the parties’ briefs? Thanks in advance.” Patent litigators and prosecutors throughout the nation have been sending emails with this request for years, relying on the kindness of strangers for a professional courtesy. They do this because there is usually no easy way for them to obtain Federal Circuit briefs. The reason for that is the Court – charged by Congress to resolve the most important technology disputes in the world – still does not have electronic case filing (ECF).
In the federal judiciary, ECF is now operational in all appellate and district courts, save two: the Supreme Court and the Federal Circuit. Some Supreme Court justices are comically unfamiliar with such cutting-edge technologies as texting and email, though the Chief Justice probably does know more about pagers than the typical 20-something today. Fortunately, the technological backwardness of the Supreme Court’s case filing system is of no consequence – you can get just about any petition or merits stage brief you might want from SCOTUSblog, the American Bar Association and other online sources.
At the Federal Circuit, however, odds are you have only three options when seeking a brief or motion: i) pay several hundred dollars for a messenger to go to the Court and copy it, ii) pay Westlaw or Lexis a similar amount to download it (if available) or iii) ask an attorney in the case for the favor of a PDF (tip: ask really nicely).
The Court’s long delay in implementing ECF is puzzling. In case after case, Federal Circuit judges and their law clerks demonstrate their ability to learn and analyze extremely complex technologies in widely disparate fields. Why then is the Court lagging behind every regional circuit court and all district courts in the nation when it comes to adopting technology in its own operations?
ECF is not a newcomer to the federal courts. District courts started using ECF in 2002; circuit courts in 2005. On June 28, 2007, then Chief Judge Michel announced that the Court hoped to utilize ECF in fall 2007. Since then, nothing. Well, slightly more than nothing. This message appears on Federal Circuit electronic docket sheets: “The following documents, filed after 8/13/07, are available for download: official caption, entry of appearance, certificate of interest. No other case documents are available electronically.” I can scarcely imagine any documents of less interest to others than captions, entries of appearances and certificates of interest, yet these are the ones you can obtain electronically.
The Federal Circuit’s lack of ECF is not merely a hassle for lawyers in search of briefs and motions. Scores of non-lawyers, including inventors, veterans, federal employees and vaccine-case claimants, represent themselves in Federal Circuit appeals. That rather challenging task would be less daunting if they had easy access to well-written appellate briefs of experienced counsel.
Federal Circuit judges, please consider this an amicus filing from someone who has great respect for you and the Court – it is time to roll out ECF.
“I’m a historian”
I lulzed right back.
“Keep fluffing, sockie!”
Definitions of fluff from link to onlineslangdictionary.com
fluff
•To have s_ex.
•to flatulate; FART.
•unsubstantial.
Given MM’s prediliction for s_ex with dead presidents, his sense of smell (other than his own) and the excessively low expectations he sets for himself as for the content of his posts, this appears to be (yet another) classic case of MM accusing others of what he himself does.
WTG MM !
Stop in again when you have nothing meaningful to add.
You people are amazing. Truly amazing. Brilliant performances here by IBP, Ned, and somebody who does a really good impersonation of NAL.
Thanks for the post, Andrew.
“Rich will be treated well by historians.”
I lulzed.
I’m a historian and I’m already mistreating the crazy old coot. But that is not to say that I don’t also hold him in high esteem for his less, shall we say, ridonkulous positions.
Rich will be treated well by historians.
Keep fluffing, sockie!
Until you accept the reality of the unique interplay in history for this individual, your scorn and enmity
Looks like NAL is back off her meds again.
Love your LinkedIn page.
anon, you’ve got to be kidding. I led with a quote from a fellow of his on the court, Baldwin. I am not the only one who shares my opinion of Rich.
Now go back and read what Baldwin said.
Then consider State Street Bank.
Then consider what an en banc Fed Circuit said about that case.
Then conisder what the Supreme Court said about that case.
Ned,
You are defintely entitled to your opinions, no matter how wrong they may be.
Rich will be treated well by historians.
You have mischaracterized his role as a Judge from one of interpreting his own handiwork to one of a continuous legislator. You have stepped well over the line in pursuit of your agenda.
Having noted that Rch was intimately familiar with how the law should work – moreso than any other jurist – is simply disregarded in your view. This is not acceptable. Until you accept the reality of the unique interplay in history for this individual, your scorn and enmity will eat at your soul and continue to produce the bitter rants that we see here.
Rants, by the way, that will continue to embed the “I have zero effect on anyone” claim to fame for the name of “Ned Heller” that you have recently made — a decidely poor rhetorical choice to have posted such.
simple, Speaking of Rich’s opinion in In re Musgrave “BALDWIN, Judge (concurring).
I feel compelled to speak out against the majority opinion. It is my position that the doctrine promulgated by that opinion, which constitutes a major and radical shift in this area of the law, is a serious breach with the time-honored judicial practice of resolving important questions of law on a case-by-case basis, a policy matter which I thought had been settled by agreement of the full court with the second Prater decision and which up to now the court has followed. In addition, I feel that the course which the majority opinion takes is not only unnecessary in order to decide this particular case (or any others in this area, for that matter), but also will probably create more problems than it is intended to solve. Finally, I must point out that the majority embarked on this course without having been asked to do so by appellant.” link to scholar.google.com
This practice of making pronouncements far beyond the case by Rich, and by his followers, began it appears, here. Up until then, Rich was content, it appears, to write narrowly and decide the case before him.
Couple this judicial legislative approach to the court with the fact that Rich wrote the ’52 Act, made his views on what it meant virtually unassailable.
The combination gave him a platform to change the law to suit his views of what the law should be, rather than what it was. But that is the province of Congress, not of Judge Rich.
Thus, he sought to change the law in numbers of areas, including patentable subject matter, indefiniteness, invention, and the like. Given his position on the court and his status as the author of the ’52 Act, he was uniquely position to do what he actually did.
His crowning achievement was State Street Bank, a Dred Scott of a decision that got the attention of the Wall Street and of Congress. Bilksi was an utter condemnation of that decision, and rightly so.
Now if you agree with what he did, one might turn a blind eye to his methods. But I for one do not agree with what he did, not one bit. Further, I disagree with his constant judicial legislation. He set a really bad example that others on the court have followed.
Story and Hand are well regarded by patent historians because of the persuasiveness of their opinions. Rich, on the other hand, while important to patent law, will not be so well treated by historians.
Ned,
I don’t understand the level of animosity you have towards Rich.
If you had helped write the 1952 Act, why would this be a negative in interpreting what you helped create?
Um no, you concern yourself too much with what I have to say and the way I say it. After all, it’s just one man’s views.
In contrast, the views of a powerful federal judge are quite important, especially if he views his role as a legislator and not as a interpretor of the law.
“My own views have no impact at all. None.”
Is that something you realy want to be bragging about?
Nonetheless, there are clear situational ethics (or more precisely, lack thereof) at play. It really does not matter how effective you are in plying your agenda. You quite miss the point that even as a powerful judge – Rich was interpreting something he was extremely familiar with and deserved a much higher level of deference on his interpretation – expressly for that familiarity.
Quite the opposite with you and your agenda – you seem to have no familiarity with the law, given your quite abberant rants, and your penchant for character assinations when your “logic” is shown to be a fallacy, and you refuse to engage in any type of intellectual conversation on the merits.
I.
Am.
Not.
Surprised.
At.
All.
And neither should anyone else.
This may be the cause for your rather low impact factor.
Yeah, sure.
I am not a Federal Judge. There is a difference. Rich was a powerful judge, and his agendas had a lot of impact on the United States. My own views have no impact at all. None.
As to the Supreme Court, I agree with you that there does appear to be a divide between the conservatives and liberals on this issue. Scalia seems to be on the fence. Makes one wonder.
It’s funny that you chide Rich as having an agenda, when it is clear that your zeal for your own agenda blots out all rationality.
Try to remember that Rich was more aware of the fallabity of the Supreme Court (and you want to talk about having some serious agendas – start there). After all – RIch helped write teh very law that as a member of the judiciary, he was called to interpret.
You really should try to sound out your logic before posting away. Try a nuetral and objective third person who is not afraid to tell you when you are merely on a rant.
IBP, agreed. Beginning with Rich, one sees the Federal Circuit staffed with at least a few jurists who do not decide cases, but, who rather, pursue agendas.
What we need on the bench are judges who are careful, who write narrowly and who decide the cases before them only, aware of their fallibility. Judges of wisdom and prudence.
Does anyone on the Federal Circuit resemble such jurist? I think there are several. I am becoming quite impressed with several of the newly appointed judges who primarily were not on the bench during the Rich era. These are the folks who decided Bilski and who trashed the crown jewel of the Rich era, State Street Bank.
Regarding State Street Bank, NO decision in the history of the United States, save perhaps for the causi bellum of the Civil War (an you know the decision of which I speak) deserves more opprobrium than State Street Bank. And no jurist would seemed to have move so aggressively across a Rubicon of well accepted law that even a comparison to the effrontery of Julius Caesar would seem inapposite.
But Rich was not alone. There are others on that court who adhere to the Rich legacy. They are the bitter clingers to State Street and Alappat. We should all know who they are, because they are dangerous.
Shilling, a constitutional challenge to section 16(b) of the AIA by a relator with a pending case involving an expired patent would be a long shot coupled with a longer shot. First you need to establish the uncompensated taking of a property interest in the pending litigation. That already looks like quite a stretch. Then you need to address why Congress cannot change the definition of false marking retroactively, not to include marking with an expired but applicable patent.
Anyone who can clear both of those hurdles deserves some major accolades.
In searching for a Wikipedia link to explain ingratiation, I came across the following particularly apt quote in the Wikipedia entry:
“To shield the obviousness of the flattery, the ingratiator may first talk negatively about qualities the target knows are weaknesses and then compliment him/her on a weak quality the target is unsure of.”
The “quality the target CAFC knows is a weakness” and about which “the ingratiator Andrew talks negatively” is the lack of ECF implementation.
The “weak quality the target CAFC is unsure of” and about which “the ingratiator Andrew compliments them” are the judges’ “ability to learn and analyze extremely complex technologies in widely disparate fields” and their ability to engender “great respect for themselves and the Court”.
This devastates me, IBP. Please don’t say things like this about me in public forum. Direct such comments to the proper channel: the Subcommittee on Guest Bloggers. Our subcommittee will review your comments, write a resolution and forward it to the Patently-O Committee on Feedback. The current target date for action on your comments is December 2017.
BTW, for the benefit of foreign readers who may be unfamiliar with the colloquial “brown-nosing”, it refers to an attempt at ingratiation through other-enhancement.
It is precisely BECAUSE of your brown-nosing that your other effort fails.
Not that the brown-nosing is particularly successful, either, in light of the other effort.
Andrew, did you read the whole post?
I suggested that you were “trying”, not that you were “succeeding”.
IBP, I’m brown-nosing and I’m “trying to diminish the reputation of the court in a public forum”? That’s not very effective brown-nosing, is it?
Andrew–
A critical tone? It comes off more like a plaintive bleat:
“Federal Circuit judges, please consider this an amicus filing from someone who has great respect for you and the Court…”
I have to ask what the point was of writing the article. Certainly it was not to bring the issue to the attention of the court, since it has been in their “to-do” file for years.
The publishing of the article in a public forum must be an attempt to visit a state of opprobrium upon the court, in an effort to speed implementation of the program.
Now Andrew, do you honestly believe that the court will be responsive to this effort? Is the court that has been sitting on its hands for 4 years suddenly going to be receptive to the gentle persuasion offered by a desire to redeem their public reputation, to the extent that it has been damaged by your efforts?
Because your “criticism” falls vastly short of any sort of real obloquy, the court, to the extent it is even aware of your effort, is likely to treat it as the plaintive bleat of a milquetoast–and even that would be charitable of them.
Far from being disrespectful, your comments fall well within the established norms of decorum IMHO–and in so doing, sadly lose most of their effect. Maybe through this board, you can organize a letter-writing or call-in campaign to increase the profile of the issue at the court. I’m sure Jan Horbaly would find the attention terribly inconvenient.
I’m also sure that it won’t change a thing, unless maybe you can get the Rules Committee the Federal Circuit Bar Association to take notice. Kimberly McGraw is the committee chair, and her contact information is available on their website at link to fedcirbar.org as I’m sure you’re aware. There are existing avenues for you to express your views on the matter other than by trying to diminish the reputation of the court in a public forum. You could also contact the clerk’s office directly, if you haven’t already done so.
Although I’m all for ECF at the CAFC, I don’t think your indirect efforts in this forum will bear fruit–although I hope I’m wrong and that implementation can be moved up.
I say interestingly enough, as the resident Tower Dweller always seems to equate patents with “right to sue,” and everyone knows that patents are property. The juxtiposition of these two thoguhts would indicate that IANAE would openly call for the America Invents Act portion dealing with the retroactive dimissal of False Marking cases to be unconstitutional as violating the Fifth Amendment.
I don’t know what most of that means, but lucky for you I don’t have class today.
Here, I’ll explain it one last time. If you still don’t get it, maybe you’re the one who needs to spend more time in law school.
patent = property
infringement = right to sue someone
Just like:
land = property
trespass = right to sue someone
Any questions?
Cranky, the relator in the Wham-O case decided not to pursue those arguments, thus our case is moot. The WSJ covered this, and included a link to the letter I drafted on behalf of the relator, the government and Wham-O. link to blogs.wsj.com
BWA, yes.
Michael, thanks for that information. Do you recall any discussion of simply using the same system the other courts have been using for years? It has provisions for confidential filings.
Interestingly enough, the crux of the matter is whether or not the “right to sue” rises to the level of being a property interest in its own right. If so, then a taking may not be such an outlandish idea.
I say interestingly enough, as the resident Tower Dweller always seems to equate patents with “right to sue,” and everyone knows that patents are property. The juxtiposition of these two thoguhts would indicate that IANAE would openly call for the America Invents Act portion dealing with the retroactive dimissal of False Marking cases to be unconstitutional as violating the Fifth Amendment.
Maybe he will drop by after class and confirm this.
About five years ago the Federal Circuit proposed some rules for electronic filing and asked for comments. The proposed rules had some serious technical flaws — for example, they didn’t adequately deal with confidential filings, and they required the entire appendix to be scanned and filed as a single PDF. Several practitioners, including myself, sent in comments and suggested solutions to the flaws. We haven’t heard a word since. Perhaps someone at the Court could dig out those documents and implement an electronic filing system that actually would work.
AD aren’t you the same guy who used to post at ATL with his real picture?
Andrew, did you tell the CAFC they should decide the constitutional question anyway, even though the new law has made the case moot? I ask because you may have seen that one my fellow old coots, one who’d already filed a false marking suit, recently challenged the new law as being unconstitutional since it takes away his right to sue for false marking without compensating him, thus constituting an unconstitutional taking. (I think his pleading read something like, “This is America! I have the right to harass people with nuisance lawsuits, dammit!”, but I could be wrong) His suit is premised inter alia on the assumption that the false marking statute itself was constitutional to begin with, so a decision from the CAFC in your case would upholding the finding of unconstitutionality would knock his sorry case out.
Wow, Ned — I don’t see any power angles to this. It’s more that the court has made this too low of a priority. Still, I love Orwell.
Memo to the patent bar:
Consider who is in charge of the Federal Circuit. And let us not forget a fundamental source of power is in control of information:
“He who controls the present, controls the past. He who controls the past, controls the future.”
Also from the same guidelines that are so relevant to any would-be dictator: “Ignorance is strength.”
since there is ample evidence that refutes your premise, I conclude that it was included as either a literary device to increase interest in the narrative, or as a gratuitous, even possibly obsequious, platitude.
Maybe Andrew was just trying to trap you into making this ridiculous comment.
I wish Judge Linn well in this. I don’t understand, though, why this has been such a drawn-out, complicated thing. Why not simply plug in the ECF system district courts started using in 2002 and some regional circuit courts adopted in 2005? It’s nothing fancy, but it is easy to learn and works well enough.
The current target for ECF rollout is July/August 2012. Recall that the original target was fall 2007.
I just got through reading an article about the Judge Linn scholarship that said he was spearheading the court’s technology reforms. So, perhaps he is the one to talk to about this issue.
Thanks for this post.
You could add that if were not for Dennis collecting and providing postings on this blog of amicus briefs filed in major patent cases, most of us would never get to read them.
IPB, I find it surprising that judges who show such comfort with technology in deciding the cases before them would fall so far behind all of the other courts of appeals and district courts when it comes to the court’s own use of technology. Maybe I’m wrong about the premise, and maybe there is no real connection between these two things. Still, I wrote that sincerely.
There is a critical tone to what I wrote here under my own name. One person even thinks my tone is disrespectful. Whatever I’m doing, it’s not brown-nosing.
Andrew–
Brown-nosing most obviously wasn’t your primary goal, and I never suggested that it was.
However, here is your entire paragraph:
“The Court’s long delay in implementing ECF is puzzling. In case after case, Federal Circuit judges and their law clerks demonstrate their ability to learn and analyze extremely complex technologies in widely disparate fields. Why then is the Court lagging behind every regional circuit court and all district courts in the nation when it comes to adopting technology in its own operations?
The delay in implementing ECF is only puzzling if you accept your first premise. Since rejection of your premise would remove the confusion and conflict with the fact that there is no ECF, and since there is ample evidence that refutes your premise, I conclude that it was included as either a literary device to increase interest in the narrative, or as a gratuitous, even possibly obsequious, platitude.
I’ll give you the benefit of the doubt, given your obvious goodwill, and believe that it was a literary device–in which case it invites scrutiny for the truth of its contents, unless it was intended to be hyperbolic.
Actually, Andrew, I would think some Fed. Cir. judges may very well thank you at the next bench/bar conference. My experience is that the judges are in fact looking for useful suggestions on how the court could be improved, and they are not so thin-skinned as to take offense at this post. Doesn’t mean I think you are brown-nosing, obviously.
Thanks for the commentary, your honor’s spirit. While some of your words are unkind, at least you seem to agree with me that I wasn’t brown-nosing. Please tell that to IBP.
As for why the CAFC isn’t on ECF, please share! I’ve asked several people in a position to know, and they said they didn’t know.
Funny. This poster styles himself as an appellate attorney for the Federal Circuit but doesn’t even know why the Federal Circuit isn’t on ECF. His ignorance is made worse by his disrespectful tone. Too bad. Try harder next time, bro.
semi, even appellate briefs of average quality could be very useful for pro se litigants. In particular, they need to understand that they can’t just re-argue the facts.
EG, I don’t have any inside knowledge of why this is taking so long. My guess is that it has been a very low priority.
IBP, if brown-nosing were my goal, writing an this blog post about the court’s technical backwardness would be an odd way to achieve that. Do you think any of the judges are going to thank me for this at the next bench/bar conference?
“In case after case, Federal Circuit judges and their law clerks demonstrate their ability to learn and analyze extremely complex technologies in widely disparate fields.”
Andrew, I respectfully submit that this crosses the line from professional courtesy to gratuitous brown-nosing.
In any event, even if the above is true, I note that nobody has ever suggested that “In case after case, Federal Circuit judges and their law clerks demonstrate their ability to learn and analyze extremely complex [laws] in [narrow patent] fields.”
Good Monday morning to everyone!
And just btw, I live in DC, if someone wants to familiarize me with how to get briefs from the court, or if it is easy to do in person by asking a clerk there or something then I won’t charge you but like a hundred dollars.
“Federal Circuit judges and their law clerks demonstrate their ability to learn and analyze extremely complex technologies in widely disparate fields.”
You and me will have to disagree on that one bro. They show that ability often, but then, in other cases they fall flat on their faces and there is no way for the general public to fill them in and have them reconsider. For instance, the much lauded decision Research Corp would go entirely differently if the court had a certain piece of NPL by the inventors in their hands.
I like that idea a lot. Although they exist in different branches of government, in the interest of public access to relevant information on patents, simply append all CAFC filings (and district court filings?) relevant to a patent in a new tab in PAIR. If nothing else, this would save the non-lawyers and inventors from having to learn PACER.
There are a number of implementations, not only for electronic filing but also systems for public access to documents, e.g., public PAIR. With some changes, the USPTO elctronic filing system, public pair, and electronic application examination tools could be used.
It’s absolutely stunning that the Federal Circuit doesn’t yet have ECF, Andrew. What’s the issue with them on having ECF? All this does is perpetuate the unfortunate view by others (including SCOTUS) that the Federal Circuit is that “odd patent court.”
1. Thanks for this post. It is an embarrassment that the “patent court” is behind most of the other federal courts in its use of technology. As you point out, this is especially problematic in a court with national jurisdiction
2. There are at least some signs that the court is moving in the direction of launching ECF. ecf.cafc.uscourts.gov is an operational web address, and you can log on to the filing system. Also, I vaguely recall that 10 months or so ago (maybe a lot more than that; I don’t really remember), there was a USAJobs posting for someone to oversee the CAFC’s transition to ECF filing. It’s long overdue, but it does require a lot of work to implement.
3. The Federal Circuit’s lack of ECF is not merely a hassle for lawyers in search of briefs and motions. Scores of non-lawyers, including inventors, veterans, federal employees and vaccine-case claimants, represent themselves in Federal Circuit appeals. That rather challenging task would be less daunting if they had easy access to well-written appellate briefs of experienced counsel.
I’m unable to resist a bit of snark here — the “well-written appellate briefs” are needles in haystacks, though electronic access to the haystack for PACER prices instead of Westlaw prices would be a step in the right direction.
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