It seems to me that in almost all cases, the "specialty" Courts tend to rule on the side of what they were meant to "judge". If it's a "patent Court", then they will almost always rule in favor of the patents. If it's a spying Court (FISC), then they will rule in favor of the spying, and become a rubberstamp Court for surveillance requests.
So maybe we should get rid of specialty Courts, no?
It is rather unfair to lump the "FISC" system in with all the courts, because it is more of a board, panel, committee, in camera hearing, or administrative proceeding. "FISC" lacks the essential qualities of a court, as the defendant has no right to appear, they are not represented by counsel, charges are not presented, evidence is not disclosed, and there is no right to trial by a jury of the accused's peers.[1]
Yes it's dreadfully unfair. Little children are crying. And yet GP's observation that "specialty" Courts tend to rule on the side of what they were meant to "judge" is true, without consideration for particular procedural differences.
Part of this is due to the fact the courts like CAFC are appeals courts.
By the time CAFC sees a patent, a lot of experts have already looked at it and said it is good. These include:
1. The patent attorney or agent who advised the inventor during the application process.
2. One or more examiners at the patent office.
3. When the patent owner was considering his lawsuit, he would have hired patent attorneys, non-attorney patent experts, and subject matter experts to evaluate the patent and the alleged infringing product, in order to determine if it was worth going through with a lawsuit.
It would be surprising if patents that get through this gauntlet did not tend to be approved by the CAFC.
Actually, the meme that CAFC tends to rule too much on the side of patent owners is more of an urban legend based on grumblings of some patent lawyers, which was then picked up and spread by certain "journalists" (hi, binarybits!) and regularly parroted by others, like TFA. But this is belied by the actual data -- see this older post of mine: https://news.ycombinator.com/item?id=7849386 It cites a number of empirical studies and statistics that shows that the Supreme Court and the District Courts agree with the Federal Circuit way more often than not.
Further, if you look at the EU, patent cases there AFAIK are handled by specialty courts, and they tend to result in much cheaper, faster and more consistent resolutions. This seems to be because they are decided entirely by the judges, who not only are already intimately knowledgeable about the laws they are dealing with, but most of whom seem to have technical backgrounds. This means no messing around with juries and expert witnesses. (More knowledgeable people, please correct me.)
Based on the evidence from the EU, I actually think the solution to the litigation problem is the opposite of what you propose: move the role of the CAFC much lower down the patent litigation chain, i.e. all patent cases go directly to the Federal Circuit or some equivalent thereof. Not only could this have the same benefits as the EU system, it would neutralize the whole game of forum-shopping.
> Further, if you look at the EU, patent cases there AFAIK are handled by specialty courts, and they tend to result in much cheaper, faster and more consistent resolutions.
The "cheaper and faster" aspect is more likely to be an artifact of civil law systems vs. adversarial systems (especially the absence of a jury in civil cases), since it is not specific to patent cases. And it's very much debatable whether they are more consistent.
Also, European specialty courts are just as prone to regulatory capture. See, e.g., the fascinating holding of the EPO Board in "Auction Method/Hitachi": "The Board is aware that its comparatively broad interpretation of the term 'invention' in Article 52(1) EPC will include activities which are so familiar that their technical character tends to be overlooked, such as the act of writing using pen and paper." A holding that flew in the face of decades of European patent jurisprudence and was a fairly blatant end run around the requirements of article 52 of the EPC.
So maybe we should get rid of specialty Courts, no?