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2 Cybaris Intell. Prop. L. Rev. 1 (2011)

handle is hein.journals/cybaris2 and id is 1 raw text is: 










          TRANSCRIPT: THE HONORABLE JUDGE RANDALL R.
        RADER, CHIEF JUDGE OF THE COURT OF APPEALS FOR
        THE FEDERAL CIRCUIT: THE MOST PRESSING ISSUES IN
                              IP LAW TODAY

                              RANDAL R. RADERt

   I've thought a good deal about what I wanted to communicate to you and I
know what I'm going to start with but beyond that I'm not really sure. Let me tell
you what is one of the great challenges of our profession, and what I think we
need to do to address that challenge. Our challenge is the expense and delay of
the litigation system. Now that's an enormous topic. We could each testify as to
the complications we've seen in one trial after another. The difficulties we've had
in getting to a resolution and particularly we could probably all talk about the vast
expense of discovery and how that often operates against just outcomes. In fact
I'm sure there are those of us here who can testify to the expense of the system
actually becoming a blackmailing agent. Rather than pursue a just outcome, often
the litigant has to settle early just to escape the cost of litigation. This is not an
unusual scenario for us, but it ought to be extremely troubling to us. There isn't
one of us in the bar that hasn't raised our arm at one time in the past and made a
commitment to not only uphold the laws, but to do equal justice under those laws.
I'm not sure we are pursuing just outcomes when we make them contingent upon
economics, upon strategies of delay, upon tactics that use the system against just
outcomes.

    Now let me tell you a little bit about what the Federal Circuit is doing to
address this and see if I can't enlist you to help me. You just heard me say and
I'll say often, it's one of the common themes with me, that our Court is only as
good as its bar and on this one we need you. I think this cost and delay issue is
largely attributed to our discovery system. Now our discovery system has a
certain majesty and we all understand its purpose, that by exchanging information
early in the process we can perhaps reach a settlement and forgo the cost and
difficulty of litigation, but it's operating to exactly the opposite effect when it


    T The Honorable Chief Judge Randall Rader was appointed to the United States Claims Court
(currently the U.S. Court of Federal Claims) by Ronald Reagan in 1988. He was appointed to the
U.S. Court of Appeals for the Federal Circuit by George H.W. Bush in 1990. Judge Rader became
Chief Judge of the Court of Appeals for the Federal Circuit (C.A.F.C.) on June 1, 2010. As well
as sitting as Chief Judge on the C.A.F.C., Chief Judge Rader has worked as a professor at George
Washington University School of Law, Munich Intellectual Property Law Center as well as
programs in Tokyo, Taipei, Beijing and New Delhi. Chief Judge Rader is also a co-author of the
patent law textbook, Cases and Materials on Patent Law.

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