In some cases, the “correct” ruling might prove particularly elusive. Even when an issue is fully canvassed and the dissenting judges’ battle for the majority vote is lost, the dissent creates a record of what can be a very important dialogue. That dialogue might lead yesterday’s dissent to become tomorrow’s law. Over the years, we have come to recognize some of our judges as “great dissenters.” Holmes and Brandeis easily come to the mind. In patent law, there is another candidate for this title. Judge Pauline Newman has been on the Court of Appeals for the Federal Circuit for over thirty years. For many of those years, she was one of the leaders on the court and in sync with other leaders such as Judge Giles Rich. This was in part aided by the fact that Judge Newman spent thirty years prior to becoming a judge as a patent attorney and played a role in the court’s early formation. She was part of the patent committee of the Domestic Policy Review, formed by President Carter, which reviewed the issue of patent adjudication.
Judge Newman is the Federal Circuit’s most prolific dissenter, and her dissents are important. Former Chief Judge Paul Michel noted that “Judge Newman may hold the record for the most dissents. But her dissents have great force and often persuade other colleagues over time.” Judge Kimberly Moore concurred, saying “what people may not realize is that many of her dissents have later gone on to become the law either the en banc law from our court or spoken on high from the Supremes.”
According to Judge Newman, “the formalized expression of contrary views is part of a jurisprudential culture, and may advance and clarify the law. Judge Newman’s dissents reveal the consistency and coherence of her judicial philosophy and a sincere commitment to the mission of the Federal Circuit to promote innovation. Many of Judge Newman’s dissents concern validity issues, especially on issues of novelty and nonobviousness. Other dissents argue that district courts should be given more discretion than the majority sometimes allows, a view that the Supreme Court has vindicated. Judge Newman has also been concerned about the manner in which the Federal Circuit has, at times, restricted the doctrine of equivalents and expanded the defense of inequitable conduct to the detriment of patentees.
She corrects the majority on the science, because “she believed, as a lawyer in the private sector observing decisions in patent cases, that not all judges understood the ways of technologists, or investors, or the workings of the patent system.” She noted that “there appears to have been a failure of the ‘two cultures’ of law and science to understand each other.” As she stated “today we cannot afford this gap, for scientific and technologic issues, underlie large segments of modern jurisprudence, as well as of our economy.” Judge Newman’s dissents have enriched the patent dialogue at the Federal Circuit. A few have succeeded in gaining traction with the Supreme Court, with her colleagues, and with academics. Others are pitched to a key for a future court and a true measure of their influence lies in the hands of history.