Giles Rich

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Giles Sutherland Rich
Giles s rich.jpg
Judge Giles Sutherland Rich in 1994, age 90
Judge, Court of Appeals for the Federal Circuit
In office
September 1, 1982 – June 15, 1999
Judge, Court of Customs and Patent Appeals
In office
1956 – September 1, 1982
Nominated by Dwight Eisenhower
Personal details
Born May 30, 1904 (1904-05-30)
Died June 15, 1999 (1999-06-16) (aged 95)
Alma mater Harvard College
Columbia Law School

Giles Sutherland Rich (May 30, 1904 – June 15, 1999) was a judge on the United States Court of Customs and Patent Appeals (CCPA) and later on the United States Court of Appeals for the Federal Circuit (CAFC), and arguably had more influence than any other individual on modern U.S. patent law.

Rich was born May 30, 1904, in Rochester, New York. He received a B.S. from Harvard College in 1926 and an LL.B. from Columbia Law School in 1929, and began working as a patent attorney at his father's New York City law firm that same year. He soon also began guest lecturing on patent law at Columbia University, and during the late 1940s, he became the president of the New York Patent Law Association, and in 1947 became part of a two-person committee to draft a new U.S. patent statute, all while continuing to practice law full-time. His partner on the statute drafting committee was Pasquale Joseph Federico, the chief patent examiner of the U.S. Patent Office. After four years of work, Rich and Federico's statute draft was introduced in Congress by Joseph Bryson (D-SC) in 1951. After passing both houses without debate, as part of a "consent bill", it was signed into law by President Truman in 1952, to take effect in 1953. It was the first full revision of U.S. patent law since the Patent Act of 1836.

In 1956, Rich was nominated by President Dwight Eisenhower to become a judge on the U.S. Court of Customs and Patent Appeals (CCPA), which had jurisdiction for certain cases from the U.S. Patent Office, the U.S. Customs Court, and the U.S. International Trade Commission. He served as chief judge of the CCPA for part of that time, and was also an adjunct professor at Georgetown University from 1963 to 1969. Upon passage of the Federal Courts Improvement Act of 1982, the CCPA and the appellate division of the Court of Claims were merged into the new Court of Appeals for the Federal Circuit (CAFC), and six judges from the CCPA, including Judge Rich, were transferred to the CAFC. Judge Rich served on the CAFC until his death in 1999. At 95, he had become the oldest living federal judge; he never took senior status, by which most judges of advanced age effectively retire.

Judge Rich's judicial opinions were often notable for their colorful and memorable language. For example, in one case in which a majority of the Federal Circuit judges were unwilling to accept as a binding precedent an earlier decision of that court with which he was apparently in sympathy, he said in dissent that they acted with "defiant disregard" of precedent and added: "[I]t is mutiny. It is heresy. It is illegal."[1]

Judge Rich's judicial opinions include some of those most groundbreaking, influential, and controversial to modern U.S. patent law. He wrote opinions in which the court struck down prior rules against the patenting of living things (Chakrabarty v. Diamond), software-implemented inventions (In re Diehr), and business methods (State Street Bank v. Signature Financial Group), saying those rules did not have a proper basis in the patent statute (which he stated that he had co-written), and opening the way for inventors to receive patents in those areas of subject matter. (The earlier two of these decisions were later affirmed by the U.S. Supreme Court).[2]

In re Diehr and especially State Street Bank v. Signature Financial Group are highly controversial decisions. Many in the academic and legal community think that the cases were wrongly decided and are examples of judicial activism on the basis of a pro-patentee agenda, and the legal reasoning utilized in these decisions has been severely criticized.[3] For example, in State Street Bank v. Signature Financial Group, Judge Rich justified his conclusion on the basis that the business method exception to patentability was abolished by the 1952 Patent Act. However, this line of reasoning is contradicted by Judge Rich himself, among others. He had earlier stated, in a law review article written not long after the passage of the 1952 Patent Act,[4] that Section 101 of the Act denied patent protection to business methods, observing that the diaper service, "one of the greatest inventions of our times," was patent-ineligible because it was a business method. The State Street decision was substantially overruled in the Federal Circuit's 2008 decision in In re Bilski. The Supreme Court's decisions in the Bilski-Mayo-Alice trilogy even more definitively rejected the line of doctrine that culminated in the State Street decision.[5]

Judge Rich was an outspoken critic of the Supreme Court and Justice Department when they took positions on patent law in opposition to those which he advocated. For example, in his opinion on remand in the case In re Bergy,[6] after the Supreme Court vacated the judgment of the CCPA that he had authored for that court, and remanded the case to the CCPA "for further consideration in light of" the Supreme Court's decision in Parker v. Flook, he wrote a second opinion for the CCPA. In it he reached the same result and said that Flook shed no light[7] and that the Justice Department had misled the Supreme Court to reach its decision.[8] This episode was part of a long-running controversy about how the 1952 Patent Act should be interpreted − was it a mere re-codification of prior law without substantive change or did it break new ground? Judge Rich took the position that special deference should be given his views because of his relation to the process.[9]

A prominent annual intellectual property moot court competition, the Giles Rich I.P. Moot Court Competition, run by the American Intellectual Property Law Association, starting in 1973, was named after him.

References

  1. ↑ Atlantic Thermoplastics Co., Inc. v. Faytex Corp., 974 F.2d 1279, 1281 (Fed. Cir. 1992). In 2009, the Federal Circuit ruled in favor of the "mutineers," however, in Abbott Laboratories v. Sandoz Inc., 566 F. 3d 1282 (Fed. Cir. 2009). By then, however, Judge Rich was no longer on the court.
  2. ↑ See Diamond v. Chakrabarty and Diamond v. Diehr. The Supreme Court overturned the State Street Bank decision in Alice Corp. v. CLS Bank International see also Bilski v. Kappos. The Supreme Court drastically "re-interpreted" Diehr in Mayo Collaborative Services v. Prometheus Laboratories, Inc. or overruled it sub silentio.
  3. ↑ See, for example, R. Hulse, Patentability of Computer Software After State Street Bank & Trust Co. v. Signature Financial Group, Inc.: Evisceration of the Subject Matter Requirement, 33 U.C. DAVIS L. REV. 491 (2000); Pamela Samuelson, A Manifesto Concerning the Legal Protection of Computer Programs, 94 COLUM. L. REV. 2308 (1994); Rafael X. Zahralddin, The Effect of Broad Patent Scope on the Competitiveness of United States Industry, 17 DEL. J. CORP. L. 949 (1992); Pamela Samuelson, Benson Revisited: The Case Against Patent Protection for Algorithms and Other Computer Program-Related Inventions, 39 EMORY L.J. 1025 (1990). See also Law School Symposium,("[Professor] Sarnoff denounced as 'judicial activism' the Chakrabarty court's expansion of statutory language.”).
  4. ↑ The Principles of Patentability, 28 Geo. Wash. L. Rev. 393 (1960).
  5. ↑ See Bilski v. Kappos; Mayo Collaborative Services v. Prometheus Laboratories, Inc.; Alice Corp. v. CLS Bank International.
  6. ↑ 596 F.2d 952 (CCPA 1979).
  7. ↑ "To conclude on the light Flook sheds on these cases, very simply, for the reasons we have stated, we find none." Bergy, 596 F.2d at 968.
  8. ↑ He wrote:

    We have observed with regret that the briefs filed by the Solicitor General . . . in Parker v. Flook, a case which, as the Court noted, "turns entirely on the proper construction of § 101," badly, and with a seeming sense of purpose, confuse the statutory-categories requirement of § 101 with a requirement for the existence of "invention."

    Bergy, 596 F.2d at 963. He also stated that the foregoing argument by the government was "subversive nonsense." Bergy, 596 F.2d at 964.

  9. ↑ See Giles S. Rich, Congressional Intent – Or, Who Wrote the Patent Act of 1952?, in Patent Procurement and Exploitation (BNA 1963). The answer was "we did," meaning the drafting committee of patent lawyers urging passage of a revised patent act. In that article and a paper entitled The Vague Concept of Invention as Replaced by Section 103 of the 1952 Patent Act, Judge Rich argued: “The intent with respect to the Patent Act of 1952 was the intent of a subcommittee to pass a bill prepared by patent lawyers as agreed to by a codification council, committee council and member of the subcommittee after the countless discussions and hearings.” A contrary view – that Congress intended no major substantive change&emdash;is reflected in the concurring opinion of Justice Hugo Black in Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336 (1961). He quotes a passage from the Senate debates on the act:

    If anyone is inclined, despite other evidence to the contrary, to attribute to Congress a purpose to accomplish any far-reaching changes in the substantive law by this enactment, he should take note that, just before the bill was passed in the Senate, Senator Saltonstall asked on the floor, "Does the bill change the law in any way or only codify the present patent laws?" Senator McCarran, Chairman of the Judiciary Committee which had been in charge of the bill for the Senate, replied, "It codifies the present patent laws." 98 Cong.Rec. 9323 (July 4, 1952).

    Aro, 365 U.S. at 347, n.2. Justice Black's discussion apparently takes the view that congressional intent was to be found in the floor debates rather than that of a group of "patent lawyers as agreed to by a codification council, committee council and [a] member of the subcommittee," as Judge Rich urged.

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