Honorable Patti B. Saris Delivers Keynote at BU Law’s Notice and Notice Failure Conference
Saris, chief judge of the US District Court of Massachusetts, noted the difficulties of hearing patent-law cases as a non-scientist.
Asking, “Has the law created a feeding frenzy, keeping scientists from doing science?”—among other cutting-edge patent law questions—the Honorable Patti B. Saris, chief judge of the US District Court for the District of Massachusetts, delivered the keynote address to the Notice and Notice Failure in Intellectual Property Law conference at Boston University School of Law on September 26, 2015.
BU Law Professor Stacy Dogan introduced Judge Saris as the winner of awards from the Boston Bar Association, Federal Bar Association, Patent Bar Association, and winner of a 2009 Harvard Medal. Judge Saris, a Harvard Law School graduate, is also chair of the United States Sentencing Commission. She was appointed to her current seat in 1993 by President Bill Clinton, and has presided over many cases involving patent litigation, including a recent case,Photographic Illustrators Corp. V. Orgill, a copyright lawsuit involving “illegal infringement of photographs.”
“Most claims do lack clarity,” Saris said, at least from the point of view of a new judge not trained in the science behind them. This creates difficulties as cases go through the appeals process, where deference to lower court judges may appear to be lacking, she said, and there is a “stunningly high reversal rate” on patent cases.
Judges like Saris are trained in patent law through what she termed “baby judge school,” including lessons from the United States Patent and Trademark Office. Patent lawsuits, she said, rose in the 1980s, ballooned in the 1990s, and reached even higher levels in recent years. Many judges, she said, are “grousing about patent cases” because “it’s really hard litigation,” at least as far as the science behind patents is concerned. “You really have to come up to speed” on the science, she said. However, this difficulty, and the associated expense, means that the field attracts talented attorneys—“a high-quality end of the profession,” she said, comparing the high stakes cases to “the Game of Thrones of litigation.”
Protection of ideas is part of our nation’s earliest history, though modern law is significantly different. As for Ben Franklin, Judge Saris said, “I don’t know how he would have protected that lightning rod!”
One of the difficulties judges face is the issue of “plain meaning” in an arena where there could be “three possibly reasonable meanings” for one statement. This struggle to interpret accurately, coupled with the high reversal rate, mean a challenging, unpredictable environment for trial judges, even those with large patent dockets who one might assume would get it right more often, she noted.
It’s the worst of all possible worlds from a judge’s point of view, Judge Saris said, one where “affirmed in part, reversed in part, remanded” is commonplace, “because that means you have a ‘do over.’”
So what’s a patent case judge to do? The dictionary is not good enough for her cases, so Judge Saris says that she sometimes turns to “tutorials,” asking counsel to “teach me [about the science of the case] like an interested undergraduate, not like a post-doc at MIT.” Ultimately, Judge Saris said, she is “trying to come up with the best meaning.”
As a takeaway from a recent Supreme Court patent case, Teva Pharmaceuticals USA v. Sandoz, Judge Saris offered this: “Claim construction is not a matter of law devoid of a factual component.” In other words, the facts of the case do matter in patent litigation.
To conclude her lecture, Judge Saris addressed a few other recent Supreme Court patent law decisions that will affect the future of the field—perhaps even making it “more predictable”—and answered audience questions on a variety of related topics.
The two-day Notice and Notice Failure conference was named for Patent Failure, by BU Law faculty members James Bessen and Michael Meurer, which demonstrates that “notice failure” lies at the heart of the current crisis in patent law. The conference addressed notice and notice failure in patent, copyright, design patent, publicity, trade secret, and trademark law.
Reported by Jaime Margolis (’16)