University of Wisconsin Law School
Most lawsuits arising under federal law can be filed in either state or federal court. Patent suits, however, may be filed only in federal court. Why do patent cases receive exceptional treatment? The usual answer is that federal courts, unlike state courts, provide uniformity and expertise in patent matters. This Article analyzes whether exclusive jurisdiction actually serves those policy aims and concludes that the uniformity-expertise rationale is overstated. If exclusive federal patent jurisdiction is to be justified, attention must also be given to pragmatic considerations, such as the respective quality of state and federal trial courts, the courts’ ability to manage complex civil litigation, and the preclusive effects of state court judgments. By reconstructing the theoretical framework for exclusive federal patent jurisdiction, this Article yields normative insights for institutional policy more broadly. Most importantly, it suggests that legislative repeals of exclusive jurisdiction — in any field of law — will be ineffective because litigants, even if given a choice, will prefer the federal courts over inexperienced and unfamiliar state courts.
Patent Law Federalism,
Wisconsin Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/164