Writing in concurrence in Meyer Intellectual Properties Limited v. Bodum, Inc. (Fed. Cir. 2012), Judge Dyk questioned why the patent in dispute issued and why it was not found obvious on summary judgment:
While I agree with and join the thorough majority opinion, in looking at this case from a broader perspective, one cannot help but conclude that this case is an example of what is wrong with our patent system. The patents essentially claim the use of a prior art French press coffee maker to froth milk. Instead of making coffee by using the plunger to separate coffee from coffee grounds, the plunger is depressed to froth milk. The idea of frothing cold milk by the use of aeration rather than steam is not new as reflected in the prior art Ghidini patent. Under the Supreme Court’s decision in KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007), and its predecessors, it would be reasonable to expect that the claims would have been rejected as obvious by the examiner, and, if not, that they would have been found obvious on summary judgment by the district court. But no such thing. The parties have spent hundreds of thousand of dollars and several years litigating this issue, and are invited by us to have another go of it in a second trial. Such wasteful litigation does not serve the interests of the inventorship community, nor does it fulfill the purposes of the patent system.
Judge Dyk specifically refers to the private costs of this litigation. In practice, this is at least a million dollars wasted on legal fees, if both parties’ costs are taken into account. The public also has spent a substantial amount of resources on this case. These resources include a federal district court’s time and resources, a jury’s time (and perhaps a future second jury), and the Federal Circuit’s time spent correcting the errors in an 44-page opinion (PDF). Beyond monetary costs, Judge Dyk’s concurrence suggests an even greater public cost: the undermining of public confidence in the ability of the patent office and the courts to get patentability decisions right on even relatively technologically simple inventions. This waste is felt intensely by practitioners, patent owners and courts. Perhaps the U.S. Patent Office can take note and do its job better by raising the bar for patentability for inventions.