The second page is really good stuff. Particularly the part about Supreme Court intervention and the need for a specialized patent appeals court. I think the Supreme Court patent jurisprudence over the last several years has been extremely good, and I think the need for a specialized patent appeals court is questionable at best. People tend to think we need specialized patent judges who can understand the technology, but I think this is misguided. Judges are experts at quickly learning the 10% of any field they need to make a decision. Technology isn't any more complicated and in need of specialized judges than say a dispute involving complex insurance or securities instrument. At the same time, generalist judges would be much better at weighing the larger issues of fairness involved in a case. There is a real lack of balance in the Federal Circuit and I think that's partly because Federal Circuit judges don't field other kinds of cases.
The article talks about the idea of the Federal Circuit "overruling" the Supreme Court by gradually chipping away at the principles behind SC precedent.
Interestingly, similar charges have been made of the DC Circuit with regard to the Supreme Court's national security jurisprudence, especially Boumediene v. Bush.[1] (The US Court of Appeals for the DC Circuit has essentially become the US terrorism court — because among other things — they are the only court allowed to hear Guantanamo detainee appeals. But DC Circuit judges do hear normal cases as well.)
So it seems to me the problem with CAFC is not just in its "specialist" judges but also in allowing the law in one field to develop almost exclusively in one court. This also makes Supreme Court supervision much more difficult.
