In comments to my previous post on Verizon/Vonage case, Ben Klemens offers some insight into the reasons for the Federal Circuit’s permissive patent jurisprudence:
Fed Circuit judges take great pains to avoid policy arguments in their rulings. I think if you asked the judge why s/he allowed patents like these to stand (sorry, s/he’d lean heavily on how the patent has broken no rules, has correctly been put through the system, et cetera. To me, their interest is much more in maintaining and/or expanding the patent system then looking at the system’s effects on the non-patent world.
As for the part in the Constitution (Art. I, sec 8.8) that says that patents shall be granted to promote the progress of science and useful arts—which implies that a patent system that does not promote progress is unconstitutional—judges often take the attitude that that part of the Constitution is either unenforceable or just rhetorical fluff. It amazes me how much effort has gone into making sure that patent rulings in no way consider whether the patent, or any aspect of the patent system, is at all beneficial.
As for how anyone could seriously support the Federal Circuit’s patent rules, it seems the Supreme Court isn’t, and is slowly but surely reversing the CAFC’s expansions of patent law—often via arguments that rightly include a policy component.
We can certainly hope.
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