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RFC Express - New IP Lawsuits

Creative, Pre-Markman ADR Approach Offers Reliable Outcomes in Post-Bilski Patent World

By William F. McDonald

Hon. William F. McDonald (Ret.) is a full time mediator and arbitrator with JAMS in Southern California.  Judge McDonald specialized in intellectual property law as a Registered Patent Attorney and in business litigation for 15 years before his appointment to the bench in 1981.  He can be reached at

“I came to bury Caesar, not to praise him” (William Shakespeare, Julius Caesar, Act III, Scene ii, line 80)

Marc Antony’s famous burial oration over the body of Julius Caesar comes to mind in reading the recent Federal Circuit decision In Re Bernard L. Bilski and Rand A Warsaw, Serial No. 08/833,892.  

The majority opinion by Chief Judge Michel, in particular, illustrates the tension that now exists in patent cases between the various United States District Courts, the United States Court of Appeals for the Federal Circuit, and finally, the United States Supreme Court.  One might think the Supreme Court has the last word, and indeed it usually does.  Speaking at a luncheon at the Georgetown University Law Center on April 1, 2008, Judge Gajarsa of the Federal Circuit commented: “The Supreme Court is telling us ---look at patent law as one of many other areas of law and not make it so specialized”. Judge ...

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