The Federal Circuit was originally created to bring more uniformity to patent law and limit forum shopping. With very few exceptions, the Federal Circuit has exclusive jurisdiction of appeals involving patent law issues from the district courts and the PTO. In recent years, the U.S. Supreme Court has been taking a number of patent cases and reversing the Federal Circuit, but the U.S. Supreme Court certainly can not take all of the patent law cases where it perceives error. In other areas of law, the Supreme Court looks to circuit splits as an indication of an issue being ripe for it to declare the law of the land. In patent law, there are no circuit splits.
Because of this, the Federal Circuit has been criticized for being isolated and for having a sterile jurisprudence. This is based on its status of effectively being the “supreme court” of patent law.
Recently, the U.S. Supreme Court has been asking for briefs from the United States–either the Department of Justice or the solicitor of the Patent Office–at the cert stage to assist in determining whether to review certain patent law cases.
Professors Craig Nard and John Duffy have called for the creation of at least one additional court of appeals to hear patent cases in order to advance the common law in the area. This could be a new circuit court, or the addition of some appeals going to the D.C. Circuit. This would requre a legislative change; patent law reform has long been on Congress’ docket, but seems difficult to pass.
Chief Judge Michel recently called for attorneys in patent cases to request more en banc review, where important decisions are made by all 12 active judges on the court, rather than the typical 3 judge panel. He called the Federal Circuit’s en banc procedure “underutilized.”
Another way for Federal Circuit judges to get a better idea of what is going on around the country in other courts is the system of “sitting by designation” where one of the judges from the Federal Circuit sits on another court. In 2007 and 2008, 4 of the active judges on the Federal Circuit and two of its senior judges have sat on 4 different circuit courts around the United States. In addition, Judge Rader presided over a trial in the Northern District of New York in May 2008.
Similarly, the Federal Circuit has had judges from other courts sit on Federal Circuit panels. Between September 2006 and November 2008, 29 district court judges from 16 different district courts, along with a judge from the Third Circuit, and a judge from the Court of International Trade have sat by designation on Federal Circuit panels.
The practice of lending judges to and borrowing judges from other courts certainly doesn’t address the problems noted by Professors Nard and Duffy, but it may be the Federal Circuit’s way of doing what it can to gain exposure to other courts, as well as giving district judges who hear patent cases an inside view of the court’s inner workings.
Is this enough to bring a fresh viewpoint to the Federal Circuit?
