I suppose one way of encouraging panels not to issue so many Rule 36 judgments is to appeal to their vanity. According to a recent report, grandmaster chess players burn around 6,000 calories a day during a chess tournament. One player, Fabiano Caruana, has dropped from 135 pounds before a tournament to 120 pounds at the end of the tournament. During a match, a player’s breathing rate can triple and blood pressure can elevate.
There is obviously a significant difference in mental effort involved in writing an opinion as compared to issuing a Rule 36 judgment. So, if judges were to forsake the “Rule 36 Diet” and embrace the “Opinion Writing Workout,” they might find themselves in need of brand new robes.
You often hear patent law described as “the thinking person’s profession.” Usually, it is patent attorneys describing it this way! (I suspect attorneys in all areas of the law describe their specialty as “the thinking person’s profession.”) It would be an interesting survey to see if patent attorneys do indeed benefit from a higher neuro-calorie-burn.