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The Federal Circuit's "Great Dissenter," Her Influence on the Patent Dialogue, and Why It Matters

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The Federal Circuit's Vanderbilt Journal of Entertainment & Technology Law Volume 19 Issue 4 Issue 4 - Summer 2017 Article 3 2017 I Dissent: The Federal Circuit's "Great Dissenter," Her Influence on the Patent Dialogue, and Why It Matters Daryl Lim Follow this and additional works at: https://scholarship.law.vanderbilt.edu/jetlaw Part of the Intellectual Property Law Commons, and the Judges Commons Recommended Citation Daryl Lim, I Dissent: The Federal Circuit's "Great Dissenter," Her Influence on the Patent Dialogue, and Why It Matters, 19 Vanderbilt Journal of Entertainment and Technology Law 873 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol19/iss4/3 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. I Dissent: The Federal Circuit's "Great Dissenter," Her Influence on the Patent Dialogue, and Why It Matters Daryl Lim* ABSTRACT This Article is the first study to comprehensively explore the centrality of the patent dialogue at the Court of Appeals for the Federal Circuit, the nation's principal patent court from empirical, doctrinal, and policy perspectives. It offers several insights into how the Federal Circuit reaches consensus and when it does not, serving as a window into its inner workings, a reference to academics, judges, and attorneys alike. More broadly, this Article provides a template to study the "legal dialogue" of other judges at the Federal Circuit, those in other Circuits, as well as those in other areas of the law. The Article looks through the lens of one of the Federal Circuit's founders, Judge Pauline Newman, whose opinions have been instrumental in developing patent law over the last thirty years. These opinions reveal the consistency and coherence of her judicial philosophy and a sincere commitment to the mission of the Federal Circuit, a court she helped to create. Moreover, her dissents, particularlyover the last twenty years, serve as an institutional record for course correction even as the court continues to navigate new fault Associate Professor and Director, Center for Intellectual Property, Information and Privacy Law, The John Marshall Law School. I am grateful to Jim Brookshire, Rochelle Dreyfuss, Van Economou, Bill Ford, Stuart Ford, Hugh Hansen, Walt Kendall, Andrew Michaels, Bill Mock, Janice Mueller, Judge Newman, Sandy Olken, Matt Sag, Josh Sarnoff, and Mark Wojcik for their helpful comments, suggestions, and encouragement. I am also grateful to Dean John Corkery as well as Associate Deans Anthony Niedwiecki and Julie Spanbauer for their support and encouragement, and to my colleagues at the Faculty Works in Progress presentation for their helpful questions and comments. Adam Ernette, JD '17, provided outstanding research and editorial assistance. Thanks also to Ben Lee, JID '16, for editorial assistance. All errors and omissions remain my own. This article is dedicated to the memory of my father, Lim Seng Huat (February 1, 1950 - August 18, 2016). 873 874 VAND. J. ENT. & TECH. L. [Vol. XIX:4:873 lines brought about by the America Invents Act, the globalization of patent litigation, and disruptive technologies that challenge the compact of patent law today. The study involved a review of 1,789 cases and 4,981 law review articles to give 10,461 datapoints. An in-person interview with Judge Newman, conducted over two sessions, complements the quantitative dimension of this Article. Her frank insights fill the gaps in the facts and quantitative findings. They also provide a fresh and reflective assessment of her dissents. The data confirms that Judge Newman is the Federal Circuit's most prolific dissenter and that her dissents resonate with the Supreme Court, her colleagues, and academic commentators more than those of any other Federal Circuit judge. The data identifies her ideological supporters and detractors on the court, but her influence with those people and the industry is more nuanced than it might appear at first blush. The Article also will paint the nuanced picture of her influence on critical challenges in patent law that the Federal Circuit continues to contend with today. TABLE OF CONTENTS I. INTRODUCTION .................................... ..... 875 II. THE DYNAMICS OF DISSENT ........................ ...... 881 A. Why Do Judges Dissent? ....... ................ 883 1. To Formally Express Disagreement ............... 886 2. To Influence the Outcome ................ ....... 888 3. To Send a Signal............................... 889 B. Why Study Dissent at the Federal Circuit2 ..... ....... 891 C. Patent Law's "GreatDissenter"... .................... 897 1. The Federal Circuit's "Most Prolific Contrarian" .......... 901 2. Of Suppressed Dissents.................... 902 3. "Not a Burger" ................................ 908 III. AN EMPIRICAL PORTRAIT OF JUDGE NEWMAN'S DISSENTS: ANALYSIS AND IMPLICATIONS ....................... 911 A. Record of Number of Dissidents ................. ..... 912 B. Proxies of Influence: A Snapshot................... 916 1. Citations in the Same Case................ ......... 918 2. Citations in a Different Case ..................... 920 3. Citations by the En Banc Court and Supreme Court.... 921 4. Citations by Law Reviews .................. ..... 924 5. Outcomes on Appeal ................................ 926 C. Industries & Lower Courts.... ...................... 927 2017] THE FEDERAL CIRCUITS GREAT DISSENTER 875 D. 'Allies" & 'Adversaries" ...................... ...... 938 E. Contentions ........................................... 944 1. Validity ................................. ..... 946 a. Novelty .................................... 948 b. Nonobviousness. ......................... .... 951 c. Disclosure .......................... ........ 954 d. Statutory Subject Matter.. .................... 956 2. Infringement ............................. ..... 957 a. Claim Construction ..................... ..... 958 b. The Doctrine of Equivalents............ ....... 961 c. Extraterritorialityand Other Facets of Infringement .............................. 967 3. Defenses & Exceptions ................... ....... 970 a. Experimental Use & Repair/Reconstruction............ 971 b. Inequitable Conduct .................. ........ 973 4. Remedies ................................ ..... 979 a. Damages .......................... ............. 980 b. Injunctions ............................ ..... 980 c. Attorney Fees ........................ 981 5. Other Issues .........................................982 a. Design Patents ......................... ..... 983 b. Evidence & Procedure ...............................985 c. Prosecution ................................. 986 IV. CONCLUSION ...................................... ..... 989 I. INTRODUCTION Most dissents do not matter, which is how it should be. Society benefits most from cases that are correctly decided, even if not all of them are unanimous. Dissents, when they occur, are rarely heeded because society is chiefly concerned with the law as it is declared, not what the dissent thinks it might or ought to be.' Thus the dissents often fade into obscurity and the majority holding becomes the conventional wisdom over time. However, the fact remains that judging is an imperfect art. Judges must decide cases whether or not they know the correct 1. ROBERT H. JACKSON, THE SUPREME COURT IN THE AMERICAN SYSTEM OF GOVERNMENT 18-19 (1955) ("The technique of the dissenter often is to exaggerate the holding of the Court beyond the meaning of the majority and then to blast away at the excess. So the poor lawyer with a similar case does not know whether the majority opinion meant what it seemed to say or what the minority said it meant."). 876 VAND. J ENT. & TECH. L. [Vol. XIX:4:873 answer and usually under pressing time constraints. 2 Dissents matter because, though change is not always obvious, the judicial dialogue sharpens and strengthens the law. 3 Even when the issue is fully canvassed and the dissenting judge's battle for the majority vote is lost, hers may be the clarion call that turns the tide of ideas. Nearly every area of law is marked by the lasting effect of dissents. Justice Holmes argued for a freedom of expression that knows few bounds.4 Justice Black argued that in order to have a fair trial, defendants in criminal trials needed the benefit of counsel.6 Justice Murphy argued that even wartime concerns did not exonerate the Supreme Court's complicity with the confinement of Japanese- Americans in internment camps.6 Justice Harlan objected to segregation flowing from slavery and argued that the Constitution is color-blind, an ideal yet to be achieved.7 The same clash takes place at the Court of Appeals for the Federal Circuit. Like the Supreme Court, it is seated in Washington, D.C., but their similarities run deeper still. Constituted in 1982, the Federal Circuit is the Nation's "de facto supreme court of patents."8 It adjudicates more than two hundred patent cases and issues over one hundred precedential patent opinions annually.9 The court has exclusive jurisdiction over patent appeals, which means that, unlike other circuit courts of appeals, there is no possibility of a circuit split 2. RICHARD A. POSNER, DIVERGENT PATHS: THE ACADEMY AND THE JUDICIARY, at xi (2016) ("[A] judge has to decide a case presented to him (provided that it's within his jurisdiction)
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