Chief Judge Markey and Doctrinal Development

As I wrote in What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings, I think some of the expansion in the bounds of patentability that has occurred since the creation of the Federal Circuit could be explained by systematic effects such as the presumption of patentability (e.g., if the Federal Circuit holds that the challenger to a granted patent has not overcome the presumption of patentability, and then the PTO erroneously relies on that precedent in granting a new patent, which then itself becomes subject to the presumption). But I am skeptical of any account of doctrinal development that considers only these kinds of systematic effects and not the more idiosyncratic influences of individual judges.

As an example of the importance of strong judicial personalities in patent law, I thought it was worth highlighting the remarks at PatCon3 by Federal Circuit Judge Linn about the Federal Circuit's first leader, Chief Judge Howard Markey (starting at 15:00):

To say that he had an agenda is a real understatement. Markey had a definite pro-patentee agenda, and ruled with an iron fist. While publicly saying that he would ensure that the assignment of judges to panels would be made objectively and without regard to the substance of the cases, he managed to find himself on panels hearing the most important cases, and he generally assigned authorship of the opinions in those cases to himself. The court was not necessarily a model of collegiality, and Chief Judge Markey was not hesitant to exert his influence to achieve his objectives.

Former Chief Judge Paul Michel makes a similar statement about nonrandom assignment of judges at 19 Fed. Circuit B.J. 327, 335 (2009): "[I]n the earliest years Chief Judge Markey assigned judges to a panel. That changed substantially in the 1990s so that now our judges are assigned at random. None of us have any control over who we sit with on a given day; the cases are also assigned at random."

But the influence of individual judges' preferences on the development of patent law did not end with Chief Judge Markey's retirement in 1991. Note, for example, the anti-Supreme-Court sentiment from some members of the Federal Circuit. At PatCon3 Judge Linn referred to the "interference from the Supreme Court" and stated, "In all candor, I must admit that the heightened involvement of the Supreme Court gives me great pause." Chief Judge Rader has also openly criticized the Supreme Court's "judicial activism" in patent law, and his "additional views" in CLS Bank v. Alice pointed to the Supreme Court's decisions in Bilski and Mayo and their cert grant in Myriad as "evidence that all else has failed." Gene Quinn's post-Mayo discussion provides a descriptive account of how this sentiment can shape doctrinal development:

How long will it take the Federal Circuit to overrule this inexplicable nonsense [in Mayo]? The novice reader may find that question to be ignorant, since the Supreme Court is the highest court of the United States. Those well acquainted with the industry know that the Supreme Court is not the final word on patentability, and while the claims at issue in this particular case are unfortunately lost, the Federal Circuit will work to moderate (and eventually overturn) this embarrassing display by the Supreme Court. This will eventually be accomplished the same as it was after the Supreme Court definitively ruled software is not patentable in Gottschalk v. Benson, and the same as the ruling in KSR v. Teleflex will be overruled.

Dennis Crouch has suggested that one example of the moderation of KSR was Mintz v. Dietz & Watson, which revitalized pre-KSR anti-"hindsight" language in holding a meat encasement patent nonobvious. One could say that Mintz provides a new look at how the sausage is made—and I don't think any purely mechanistic explanation can explain this sausage.