I once asked Judge Randall Rader, who will soon be Chief Judge of the Federal Circuit Court of Appeals, whether he is a patent lawyer. I knew the answer; the judge does not have a registration number. Judge Rader said: “I am now.”
Yesterday’s Supreme Court opinion in MedImmune v. Genentech, which loosens the standing requirements for patent licensees that want to litigate the validity of the licensed patents, reminds me of that anecdote.
MedImmune will surely increase the volume of patent litigation. Licensees will be newly emboldened to sue; patent owners will be more likely to sue first and negotiate later, rather than the reverse. To take a purely internal, patent law-centric view of the case: Yet again, the Supreme Court is disrupting relatively settled patent law practice. Yet again, in other words, because the Supreme Court did something similar last summer in eBay v. MercExchange, when it addressed standards for granting injunctive relief to patent owners. No longer are patentees automatically entitled to a presumption of irreparable harm that justifies an injunction; that issue must be litigated.
To take what might be called an external view of the case, that is, one that takes a less patent-oriented perspective, the Court seems to be pushing back on the idea that patent litigation is special somehow. (Is it merely a coincidence that Justice Scalia wrote the Court’s opinion in MedImmune and that I’ve linked this post to a picture of the Church Lady?) Patent law litigation doesn’t get a pass on ordinary Supreme Court civil litigation jurisprudence; default rules of civil procedure and remedies are expected to apply.
To speculate a little bit, there seems to be an underlying sense in these cases that patents themselves — and science, to speculate a little more — really aren’t special, either. On occasion, I’ve run into patent lawyers who harangue me with the claim that non-patent lawyers (that is, lawyers without a patent registration number) have no business counseling patent clients, litigating patent cases, or even speaking on patent law topics. There’s a Brahminic quality to the argument. These patent lawyers deal in “science” (as in, “I’m not a real doctor; I have a master’s degree — in science!”), and because they deal in “science,” they deal in legal arcana that are more challenging and more important than the arcana that challenge ordinary lawyers. Especially mere copyright lawyers. In more serious terms, the argument tracks the stereotype that “science” and “the humanities” are two independent and distinct forms of knowledge, and that “science” is more rigorous and therefore more important than the humanities. Patent law is the highest calling of intellectual property law because science is somehow more fundamental to social and cultural development than are other forms of knowledge.
To which the Supreme Court might be saying, in an attentuated way but in this respect (if not necessarily doctrinally, in MedImmune) rightly so, “phooey.” (The Church Lady uses refined language, after all.) In the sense that we all know the world via forms drawn from the sciences and the humanities both, we are all, with Judge Rader, “patent lawyers.”