Federal Circuit Chief Judge Rader Pleas for More Efficient, Lower-Cost Justice

Calling patent law “the most important regulatory law in the current international marketplace,” Federal Circuit Chief Judge Randall R. Rader made a case for increasing efficiency and lowering costs in the federal court system during a recent event at the law school. “Our job is to serve those who are governed by the law,” Rader said in his opening comments. “Law should facilitate rather than frustrate the market.”

After his opening remarks, a panel discussion ensued focusing on claim construction, local patent rules, and indirect infringement, as well as a number of topics raised by members of the audience. Panelists were moderator, Kevin Collins, professor of law at Washington University, and the Hon. Audrey Fleissig, JD ’80, a judge on the U.S. District Court for the Eastern District of Missouri and adjunct professor at the law school; Alan H. Norman, a partner at Thompson Coburn and co-chair of the firm’s Intellectual Property Practice Group; and Bryan K. Wheelock, JD ’82, a principal at Harness Dickey and also an adjunct professor at Washington University. The event was co-sponsored by the school’s Intellectual Property & Technology Law Program, the China Law Society, and the Charles & Bunny Burson Student Activities Fund.

Wheelock opened the discussion with a question about lowering the cost and increasing the efficiency of “claim construction”—the identification and definition of key terms in a patent claim that must take place early in any patent case that reaches the federal court level. Chief Judge Rader agreed this was an important concern, in part because the federal court does not practice “interlocutory review” in patent cases which, if permitted, would allow attorneys to interrupt the flow of the case by stopping to define terms or clarify issues.

“We need a fully developed record to understand what we’re doing,” said Rader. “To cut the process short with interlocutory reviews at my level would introduce more error into the system” at the appellate level. As a result, Rader argued that lower courts should sort those issues out before the case is appealed to the Federal Circuit.

Interestingly, Judge Fleissig suggested that interlocutory review is often not valuable for proceedings at the district court level, either. “In my cases, if it is determined in the judgment phase that the claim construction was not sufficient, it would not be helpful to have a lawyer pursue interlocutory review,” she said. “Sometimes when it gets to the summary judgment stage, that’s where I make my determination that something in the claim construction was incorrect. I can then give the parties the opportunity to brief that particular issue so that I can get it right.”

Norman, offering the lawyer’s perspective, said local patent rules are valuable for patent cases, but only if the rules that are established are followed. “If a party doesn’t fulfill its obligations, then what do you do? We have to file a motion with the court to get more details,” he said. “While that’s not bad to have to do on occasion, there have been courts where the rules have not been enforced,” leading to inefficiency.

Another critical issue to which Rader repeatedly returned was “materiality.” Rader defined materiality in a novel fashion, equating the materiality of a case with the size of its market impact rather than taking the more traditional position of defining the materiality of an issue with reference to its legal relevance in a particular cause of action. Materiality is an especially critical concept in patent law, Rader said, because the stakes of patent cases can be so high and the cost of patent litigation has come to be too great a burden on the system.

Rader argued that cases that are more material—that is, those cases that will have the biggest market impact—should be allowed to absorb more resources (namely the time of the judge and the defendant’s litigation counsel) in the litigation process. Inversely, he suggested that courts should look for innovative mechanisms for disposing of cases that are less material in an expedient manner that consumes fewer resources.

Rader also opined that it is the materiality of patent cases that is leading the Supreme Court to accept certiorari in more patent cases in recent years. “The Supreme Court is getting more involved in patent cases because it is big-time consequential law,” Rader said. “We all know how the market is affected by innovation. The newer Supreme Court justices are more willing to wade into this area, and they’re right there, trying to be part of the solution.”


By Timothy J. Fox