I’m reading through the transcript of the Teleflex case, and I think the level of hostility shown by the justices toward Mr Goldstein (arguing for the status quo) is remarkable:
MR. GOLDSTEIN: No matter what one thinks about the differential between Federal Circuit law today and Federal Circuit law a year ago or two years ago, there is a quite considerable cost by articulating a desire to head off in a new direction, because there will be dramatic instability in the patent system, the incalculable investments that underlie current patents. There is nothing fundamentally not functional about how the Federal Circuit is approaching this question. It has had decades to look at this to try and elaborate a standard. This court in cases like Sakraida and - JUSTICE BREYER: And it so quickly modified itself. JUSTICE SCALIA: And in the last year or so, after we granted cert in this case after these decades of thinking about it, it suddenly decides to polish it up. MR. GOLDSTEIN: Justice Scalia, if you actually believe that, then you just don’t believe the judges in the Federal Circuit because in each of these opinions they say quite explicitly we are not changing it. JUSTICE ALITO: Would you dispute that in some of the earlier cases, like Dembiczak with the garbage bag that looks like a pumpkin, that this TSM test was applied in a way that seemed to ask for something quite explicit in the prior art?
Between this and the exchange I quoted last week, you’ve got three of the four reliably conservative justices beating up on the federal circuit. And the fourth justice–Justice Thomas–almost never asks questions during oral argument. It seems like the right-hand side of the court is unhappy with the way the federal circuit’s been doing things. And judging from Justice Breyer’s comments, I’m guessing the left-hand side is too.
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