Vol. 14, No. 2, Pg. 42. FESTO-val! More entertaining than the average business strategy soap opera.

• Author: By Richard M. Moose and Ashley B. Summer

South Carolina Lawyer

2002.

Vol. 14, No. 2, Pg. 42.

FESTO-val! More entertaining than the average business strategy soap opera

42FESTO-val! More entertaining than the average business strategy soap opera.By Richard M. Moose and Ashley B. SummerThe U.S. Supreme Court recently unanimously vacated and remanded a decision of the en banc CAFC that, ruled either way, greatly affects the scope of protection of nearly one million of the 1.2 million patents in force. The Supreme Court opinion highlights the care and foresight required during the patent application process. Such need is multiplied by numerous proposed government fee structure changes within the USPTO. As a merry-go-round of ever-changing patent strategies grinds along, businesses' best advice remains to be fully engaged with experienced, qualified counsel to service their intellectual property needs, keyed to a marketplace-driven reality unique to their circumstances.

44 As the patent world turns

Congress established the Court of Appeals for the Federal Circuit (CAFC) in October 1982 to promote uniformity in substantive patent law. Little time was needed for such innovation to bear fruit, and the number of patent filings began to increase as the consistent application of patent laws became more reliable.

The CAFC has exclusive jurisdiction over appeals from all U.S. District Court final decisions that are based, at least in part, on the patent laws. The CAFC also has jurisdiction over appeals of final decisions of the U.S. Patent and Trademark Office's (USPTO) Board of Patent Appeals and Interferences (Board). In other words, an applicant unhappy with the USPTO or a dissatisfied federal district court patent litigant may appeal directly to the CAFC. Only the U.S. Supreme Court is available for any further appeal.

Prior to 1982, the Supreme Court very infrequently heard a patent case, and decisional splits in substantive patent law were common among the existing federal circuit courts of appeal. The value of a patent, and therefore the willingness to expend the investment to obtain and enforce one, was diminished by the reality of forum shopping for jurisdictions that were less or more "patent friendly," depending on a litigant's needs. Through establishment of the CAFC, however, substantive patent law gained stability and consistency, and the value and respect of patents increased.

Although founded on specialized experience and abundant with...