Lunch with Judge Rader
Posted Thursday, October 13, 2011.
Yesterday, I had the opportunity attend a luncheon to hear remarks given by Judge Randall R. Rader, who since 2010 has been the Chief Judge at the Court of Appeals for the Federal Circuit (CAFC). The CAFC has exclusive appellate jurisdiction for cases regarding patents. In most federal lawsuits, if a trial court decision is to be appealed, the appeal is heard by a regional circuit court of appeals. But in patent matters, for consistency’s sake, among other reasons, Congress has required all appeals to be heard in the CAFC, located adjacent to the White House in Washington, D.C.
Since the recently enacted America Invents Act (AIA) patent reform law was such a substantial revision to our patent laws, I was very interested to get the perspective of the Chief Judge of the court that will provide very substantial interpretations of the new law in the coming years. Additionally, while I was quite familiar with Judge Rader’s written opinions and his other writings, I had never previously seen or heard him in person.
Clearly, I wasn’t the only Seattle patent practitioner thinking along those lines. The luncheon, which was hosted by three different intellectual property organizations, sold out almost immediately, and seats in an overflow room adjacent to the meeting room where the luncheon was planned were later offered. Attendance was limited to members of the Washington State Patent Law Association (WSPLA), the Washington State Bar Association (WSBA) IP Section and the King County Bar Association (KCBA) IP Section. I am a member of all three, so I was able to participate.
While as a patent agent, I wouldn’t be arguing before Judge Rader, who has been on the CAFC for two decades. But several attendees were Seattle patent lawyers who specialize in litigation, including a couple of colleagues who are among “The World’s Leading Patent Litigation Practitioners” featured recently in the newsletter Intellectual Asset Management. Obviously we were all looking for clues as to how to draft or litigate patents in ways that the CAFC would regard favorably.
The specific details or concepts Judge Rader discussed might be overly technical, or even boring, if you don’t think about patents all day long like I do. But I found Judge Rader to be warm, candid, funny and dynamic. He was quite approachable, walking around the tables to introduce himself to each attendee, shaking hands and slapping backs as he did so. He spoke with candor, acknowledging, for example, the dissonance in recent opinions from the CAFC regarding business method patents, and openly stating that in some respects, how the court would interpret the new America Invents Act was difficult to imagine right now.
I enjoyed a story Judge Rader told about a recent trip of his to Korea. He speaks to groups often, and in this instance, he visited the corporate offices of Samsung and spoke to what seemed to him to be every attorney Samsung employs, whether a patent attorney or not. As a part of his talks, he will often pull a smartphone out of his jacket pocket to ask the crowd whether anyone can guess how many patents actually apply to different elements of the phone. In Seattle, when he did so, I could see the Apple logo reflected by the lights in the room, so I knew his smartphone is an iPhone. Judge Rader said when he performed the same act at the headquarters of Samsung, he was stopped short by a collective gasp among the meeting attendees. Realizing he had perhaps committed a faux pas utilizing an Apple product as a part of a demonstration to Samsung, he was unsure how to recover. That is, until he was bailed out by the Samsung president, who said, “that’s alright, we have technology included in that phone. And at least it’s not an LG phone.”
At a different point, when Judge Rader took questions from the audience, a fellow Seattle patent practitioner walked up to the microphone and began his question with, “Judge Rader, I have had the pleasure of reading the entire AIA from cover to cover.” To which the judge said, “well now I’m worried about you, because you clearly have no life,” which got a healthy laugh from the audience. (My colleague quickly responded that it had been a long plane ride that offered the opportunity.)
I was very pleased to have the opportunity to meet Judge Rader in person, even if only for a minute. And his presentation, followed by the questions and answers, were insightful and helpful for me as I prepare applications for patents for my clients. Even though patents in the U.S. are as old as the Constitution, the law is redefined over time to meet the needs of our new technological era. Keeping up to date with new developments is just part of my job as a patent agent; the fact that doing so yesterday in a forum that was so enjoyable was a bonus.
(By the way, for trivia fans: the number of patents covering technology included in an iPhone is over 300, says Judge Rader. And if you include design patents, that number is probably closer to 1,000. His source for this information is a former law clerk of his who is now an Apple employee that works with Apple’s IP portfolio every day.)