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Chicago-Kent College of Law




In a recent, attention-grabbing speech, the Chief Judge of the Seventh Circuit, Diane Wood, argued that Congress should abolish the Federal Circuit’s exclusive jurisdiction over patent cases. Exclusive jurisdiction, she said, provides too much legal uniformity, which harms the patent system. In this response to Judge Wood’s thoughtful speech, I seek to highlight two important premises underlying her argument, neither of which is indisputably true.

The first premise is that the Federal Circuit actually provides legal uniformity. Judge Wood suggests that, due to the Federal Circuit’s exclusive jurisdiction, patent doctrine is insufficiently “percolated,” meaning that it lacks mechanisms through which case law can be critiqued, reexamined, tested, and corrected, and issues worthy of Supreme Court review can be flagged. Yet percolating forces do exist in the patent system. For example, in the Federal Circuit, dissents critiquing existing doctrine are frequent and often lead to en banc proceedings reexamining and sometimes correcting the doctrine at issue. In addition, the Supreme Court, federal district courts, Congress, the Solicitor General, and the Patent and Trademark Office, among others, all provide, through various channels, diverse and influential perspectives that prevent patent law from becoming stale.

The second premise underlying Judge Wood’s argument is that a lack of dialogue among the federal appellate courts causes problems in patent law. Problematic Federal Circuit doctrine, however, should not be blamed solely on a lack of dialogue among peer-level courts. For one, as I have just mentioned, there are substitutes for that dialogue in the current institutional design. Moreover, several Federal Circuit doctrines that have been overturned by the Supreme Court or criticized by scholars and judges seem heavily influenced by the charges Congress gave the Federal Circuit upon its creation: to provide uniformity and expertise in patent matters and to strengthen patent rights. For example, de novo appellate review of patent claim construction arguably illustrates a court seeking, perhaps overzealously, to pursue uniformity and to provide its expert input on the most important question in any patent case.

Thus, normative proposals about the structure of the Federal Circuit should not focus entirely on introducing percolation; they should also consider ways to reduce the influence of the policies for which the Federal Circuit was created. Importantly, there may be ways to reduce that influence while also saving the Federal Circuit’s exclusive jurisdiction over patent cases. For example, the President could appoint to the court more individuals who have some knowledge of patent law but also have experience in many other areas of law. The jurisprudence of the first-ever former district judge appointed to the Federal Circuit, Judge Kathleen O’Malley, suggests that judges with such wide-ranging experience might be inclined to oppose doctrines that blindly pursue patent-specific policy objectives at the cost of broader goals, such as litigation efficiency and maintaining the consistency of patent law with other areas of federal law.

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