Federal Circuit Judge Rader Offers Chinese Judges a Primer in IP Law

A group of Chinese judges got a crash course in intellectual property law at the U.S. Court of Appeals for the Federal Circuit yesterday, courtesy of Judge Randall Rader and others.

The Sept. 22 discussion is part of the judicial education program put on by Temple University's Beasley School of Law in which judges from China learn about aspects of the U.S. legal system--such as due process, judicial ethics and transparent decision-making--with the idea that they will promote them when they return to China. This year's trip brought 25 high-ranking judges from across China to New York City, Philadelphia, and Washington to focus on intellectual property law.

The program's Washington leg was organized by PCT Government Relations, lawyers from Jones Day and from Sterne, Kessler, Goldstein & Fox, and the Global Intellectual Property Center at the U.S. Chamber of Commerce. Rader’s session was the third of the day. Lawyers from Sterne Kessler and Jones Day spoke at earlier panels.

Rader's remarks opened with a walkthrough of how the U.S. judicial system works--from opening statements in a federal trial to possible final dispensation by the U.S. Supreme Court, and all the major steps in between. He also described the work of the Federal Circuit and its national jurisdiction.

"The Federal Circuit is perhaps the country's most important circuit," Rader said. "My colleagues from other circuits get upset when I say that, but I think the reason is because it's true."

Rader called on the judges to push for more and better trained lawyers to help speed up the Chinese judicial system, noting that under Chinese law, a case on appeal is retried from start to finish at each stage of appeal and new evidence may be introduced at any stage. He said that the U.S. system benefits from skilled lawyers who can reach settlements early in the proceedings.

"If our courts had to resolve by trial every case that was filed, we simply couldn't do it," Rader said. "But only about 3 percent go to trial, and that's thanks to highly skilled lawyers and their ability to explain to clients how they can settle without going to trial."

Rader closed by asking the group of judges to put themselves in the position of Federal Circuit judges hearing the landmark Microsoft v. AT&T case. As Rader described the case, the two corporate giants battled over Microsoft's sending of a master disk of its Windows program that included voice recognition technology patented by AT&T to China with the intent for the disk to be copied. The question for the judges, and the Federal Circuit when it decided the case in 2005, was whether the damages Microsoft owed AT&T should be based on its violating the patent one time by mailing the disk overseas or whether the damages should be calculated based on the number of copies made from the master disk.

By a 20 to 7 vote, the Chinese judges ruled in favor of AT&T, saying that Microsoft violated the company's patent each time the master disk was copied. (For the record, Jones Day partners Arthur Beeman and Anderson Berry and Sterne Kessler managing partner Michael Ray voted in favor of Microsoft. Sterne Kessler associate Lei Zhou appeared to abstain.)

In the original case, the Federal Circuit ruled in favor of AT&T (.pdf). Rader wrote a dissent, saying that if AT&T wanted to block infringement of its patent abroad, it should obtain foreign patents.

When Rader said that the Supreme Court agreed with the dissenter (.pdf), not naming himself, and ruled in favor of Microsoft, the audience gasped. "So you can see how important and interesting the work of the Federal Circuit is," Rader said in closing before inviting the judges to join him for a photo on the bench.

Comments

[Mud]

A depressing instance of the broken clock touting its own accuracy.

The even more depressing aspects of the anecdote is that instances can be found in which a majority of a Federal Circuit panel can be even more wrong than Randall Rader, and that they can be that wrong by being faithful to their own precedent.

[Jon]

When 20 out of 27 CHINESE judges think the Supreme Court's interpretation of our patent law is too lax, maybe J. Rader and the Justices have some soulsearching to do.