Differentiating the Federal Circuit.

Author:Winston, Elizabeth I.
Position:Evolving the Court of Appeals for the Federal Circuit and Its Patent Law Jurisprudence

    The United States Court of Appeals for the Federal Circuit was established on October 1, 1982, as an "intermediate appellate court whose jurisdiction was defined by subject matter rather than geography, and whose decisions would establish nationwide precedent on subjects as to which it had exclusive appellate jurisdiction." (1) The Federal Courts Improvement Act of 1982 (2) established two new courts: the United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Federal Claims (3) while terminating two courts: the United States Court of Customs and Patent Appeals (CCPA) (4) and the United States Court of Claims. (5) The Federal Circuit issued its first opinion on October 28, 1982, and in that opinion held binding as precedent "the holdings of our predecessor courts, the United States Court of Claims and the United States Court of Customs and Patent Appeals, announced by those courts before the close of business September 30, 1982." (6) In its first opinion the Federal Circuit established that it was unique in many ways.

    These differences underlie the evolution of the Federal Circuit and its jurisprudence. Part II addresses the national jurisdiction and specialized nature of the Federal Circuit. Part III highlights the strict residency requirements imposed on the judges of the Federal Circuit. Part IV discusses the statutory authority granted the Federal Circuit to sit in expanded panels. Part V focuses on the requirement that Federal Circuit panels be chosen to ensure that each judge hears a representative sampling of all fields of law under the jurisdiction of the Federal Circuit. Part VI underscores the point that the location of the court need not dictate the location of the panel sittings. Finally, Parts VII and VIII spotlight some of the more academic differences resulting from the creation of the Federal Circuit, namely the ability of the Federal Circuit to terminate judges on the Court of Federal Claims and the criminal sanctions applicable to Members of Congress arguing before the Federal Circuit.

    Engraved on the wall of the Federal Circuit's courthouse (7) are President Lincoln's words establishing the Federal Circuit's predecessor: "It is as much the duty of Government to render prompt justice against itself in favor of citizens as it is to administer the same between private individuals." (8) The Federal Circuit today balances its role as the only circuit court whose decisions "have precedential effect throughout the country" with its desire to honor the mission of promptness fundamental to its existence. This balance and the differences innate to the Federal Circuit have played an important role in the evolution of the jurisprudence of the court. (9)


    The most significant difference between the Federal Circuit and its sister circuit courts is its jurisdiction, which is defined not by territory but by subject matter. (10) Congress granted exclusive jurisdiction over certain subject matter to the Federal Circuit to ensure that "the judgments of all district courts in the land, in particular fields of law, are reviewable by one intermediate appellate court.... The expectation is that a uniformity and reliability in the interpretation and application of the involved statutes will result." (11) The most notable result of this statutory delegation is the Federal Circuit's patent law jurisprudence, a primary force behind formation of the court. (12)

    The Federal Circuit is more, however, than a "patent court"--it is a national court, and its judges are quick to point this fact out. (13) "[A]t a 1988 nationwide meeting of all circuit judges, a panel moderator, himself a judge, called the Federal Circuit a 'specialized patent court.' Chief Judge Howard Markey then rose to his feet and fairly shouted from the rear of the large meeting room that [the] court was no such thing." (14) A survey of the court's docket supports Judge Markey's claim. Only around 31% of the Federal Circuit's docket is intellectual property cases, nearly all of which involve patents. (15) Administrative law cases, specifically personnel and veterans claims, represent 55% of the docket, while cases asking for money damages from the United States government compose 11% of the docket. (16)

    The Federal Circuit's website provides interesting insights into the unique challenges faced by its judges. (17) For example, while most of the court's intellectual property cases involve patents, the Federal Circuit also hears copyright and trademark cases. (18) The Federal Circuit has jurisdiction over all appeals from the Court of Federal Claims, which include suits against the government for infringement of copyright, rights relating to protected plant varieties, mask works and other protected designs. (19) The Federal Circuit also has jurisdiction over appeals from the United States Patent and Trademark Office, which includes appeals from denials of trademark registrations. (20) Additionally, the Federal Circuit hears government contract, tax, personnel, international trade, veterans' benefits and vaccine compensation cases among other areas of its jurisprudence. (21)

    National in its jurisdiction and rich in its subject matter, the Federal Circuit has proven an apt venue for time-consuming, complex cases. (22) While the Federal Circuit is best known for its patent jurisdiction, the court's national jurisdiction is its defining feature. This national jurisdiction has yet to result in uniformity of decision, but the Federal Circuit is young. And the experiment in subject matter specialty is an ongoing and successful one. (23)

  3. THE BALDWIN RULE: 28 U.S.C. [section] 44(C)

    Another aspect of the Federal Circuit that distinguishes it from its sister circuits is the strict residency requirement to which its judges are subject. The "Baldwin Rule," as the residency requirement informally is known, (24) mandates that judges must live within fifty miles of the District of Columbia in order to serve on the Federal Circuit. (25) No other circuit has such a stringent residency requirement. (26) In all other circuits, the residency requirement only demands residential representation of every state in the circuit judiciary. (27) Once that requirement is met, circuit judges may live where they choose. (28) For instance, Judge Karen LeCraft Henderson, of the United States Circuit Court for the District of Columbia, lives in South Carolina. The court setting national precedent for patent infringement litigation has not a single jurist who resides or has resided in Silicon Valley. (29) Prior to the creation of the Federal Circuit, the judges of its predecessor court, the CCPA, were not subject to these residency requirements, which allowed Judge Baldwin to reside in Texas and Judge Almond to serve from his residency in Virginia, outside the fifty mile radius. (30)

    This clause has been the topic of debate over the years, and recently there have been several proposals to repeal the Baldwin Rule. (31) There is a large pool of national talent from which the Federal Circuit has the potential to draw, but the Baldwin Rule limits nominations to those willing to "pick up and move to Washington." (32) There is a concern that worthy candidates are not being appointed because of their reluctance to relocate to Washington, D.C. (33) Some academics and practitioners argue that a court national in jurisdiction should be national in residency as well. (34) Advocates for this change argue that this will lead to "increased Senatorial accountability" and allow the Federal Circuit to gain a better understanding of its national jurisdiction. (35) Proponents of the Baldwin Rule, however, argue that "proximity helps newer judges learn the many unfamiliar legal subjects they must master. It also helps all of [the] active judges work together more closely, collegially, and continually than if the twelve were geographically dispersed across twelve different states." (36) Judge Paul Michel, an opponent of repealing the Baldwin Rule, has noted larger concerns with eliminating the residency requirement:

    Of course, no one knows whether or how much the impressive level of talent now on the Federal Circuit might potentially be elevated if the residency requirement were removed. It is simply impossible to assess the relative strengths of these competing claims in an objective or factual manner. In my own opinion, however, the losses from such a change might well outweigh any gains, just as I would expect if Supreme Court Justices were dispersed to nine different states scattered across the land. (37) Many of the judges on the Federal Circuit lived elsewhere before their nomination. For example, Judge Kathleen O'Malley lived in Ohio, (38) Judge Alan Lourie resided in Pennsylvania, (39) and Judge Jay Plager lived in Indiana. (40) While the majority of judges lived within the fifty mile restriction at the time of their nomination, they still brought with them their rich and varied personal histories. (41) Furthermore, no candidate has turned down a nomination for residential purposes, and no candidate has proffered the Baldwin Rule as a reason to decline being vetted for a position on the Federal Circuit.


    There are thirteen circuit courts: twelve regional circuits and the Federal Circuit. (42) Panels of judges hear cases appealed to the circuit courts. (43) The majority of these panels are comprised of three judges. (44) Additionally, regional circuit courts can sit en banc to hear cases. In every jurisdiction except for the Ninth Circuit, (45) en banc decisions are heard by all active judges and often by any senior judges who took part in the original decision. (46) En banc decisions allow a majority of the circuit court judges to issue a ruling and clarify the circuit holding. The Federal Circuit, unlike the regional circuit courts, also has the ability to sit in an expanded panel format. (47)


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