Another senior judge bemoans ‘wasteful litigation,’ state of patent system

You know something is amiss with America’s innovation policy when a judge says, “this case is an example of what is wrong with our patent system.” It’s even worse when the judge in question sits on the very court that rules over the the patent system.

Federal Circuit Judge Timothy Dyk this week blasted a lower court for hitting a defendant with nearly a million dollars in costs and fees over a spurious patent. Dyk said the patent should have been found obvious in the first place or else struck down by the lower 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.

Dyk’s words come months after a famous judge called the patent system “dysfunctional,” and during a week that Apple (s aapl) and Samsung are engaged in an intellectual property free-for-all before a California jury.

The decision of Dyk and the Federal Circuit, which hears all patent appeals, comes in response to a complaint that the company Bodem had infringed a method for frothing milk:

Dyk wrote that “the idea of frothing cold milk by the use of aeration rather than steam is not new” and joined two other appeals court judges in telling the lower court to try again.

The case shows how courts continue to wrestle with the concept of obviousness. But this case at least turned on an actual product used by rival companies.

This Bodum case is not part of the multi-billion dollar patent troll industry launched by Intellectual Ventures and others. The troll model relies on acquiring old patents and then creating shell companies to sue firms that actually produce things. In many cases, the patents appear to be of dubious merit and based on concepts like owning GPS or emoticons.

Patently-O has a detailed report on the Bodum case here. The Federal Circuit ruling is here.