Symposium: evolving the court of appeals for the Federal Circuit and its patent law jurisprudence: foreword.

• Author: Crouch, Dennis D.

1. INTRODUCTION

   During its thirty years, the Court of Appeals for the Federal Circuit has continuously held a powerful role in U.S. patent policy. But the Court is neither a monolith nor a fixed point of rotation. Rather, the Court continues to change and be changed. It changes in reaction to the questions presented and external political influences; in reaction to the personnel shifts as members leave and are replaced by judges with varying attitudes toward intellectual property and varying judicial approaches; and in reaction to our understanding of the roles and justifications for intellectual property law in today's society. Although this evolution alters the law and its practice, it is this evolution that guarantees an ongoing role for the court and satisfies the public demand for a law shaped to fit the needs of society.

   While this Symposium draws its foundation from the history of the Federal Circuit, the focus is on the future--the future of patent law and the future of the court. Biological evolution is often thought of as passive--a natural phenomenon that happens to a population without conscious design. But, we are part of the patent system, and we are conscious influencers of changes to the system. Thus, for the Federal Circuit, a better metaphor uses evolution in an active form to reveal the active and intentional influences on the court.

   It is my great pleasure to introduce the Missouri Law Review's 2011 Symposium: "Evolving the Court of Appeals for the Federal Circuit and its Patent Law Jurisprudence." The entire staff of the Missouri Law Review should be congratulated both for the February 25, 2011 Symposium at the University of Missouri School of Law, and for the written Symposium that follows. Although the debates that occur in these pages are wide ranging, we framed the approach as follows in the symposium brochure:

   The Court of Appeals for the Federal Circuit is approaching its 30th anniversary as the focal point of patent law policy in the united States. Many praise the Court for its role in unifying and strengthening patent law doctrine. Others challenge the Court's formalism and argue that a doctrine-specific solitary circuit leads to systematic failures in the development of the law. In many ways, the Court is operating in a power vacuum, with the U.S. Patent Office denied authority to substantively develop the law and Congress regularly withholding its guidance. Over the past few years, the Supreme Court has taken a more active role in deciding patent cases, but will that increased interest alter the jurisprudence of the Federal Circuit beyond the doctrinal holdings of the High Court? (1) As I discuss below, conditions on the ground have changed in the few short months following the Symposium. Congress has now acted, and the Patent office will soon have additional authority. These changes play directly into the arguments of our Symposium authors and make their results even more important.

2. NOT ALONE IN THE CENTER

   Each year, the Missouri Law Review invites a particularly distinguished guest to deliver the Earl F. Nelson Lecture as the keynote speaker for the annual Symposium. This year's Nelson lecturer was Mr. David J. Kappos, Under Secretary of Commerce and Director of the United States Patent and Trademark Office (USPTO); his remarks are included in this published Symposium. (2) Since his appointment as head of the multi-billion dollar executive agency and chief intellectual property officer for the nation, Under Secretary Kappos has brought a new vibrancy and positive spirit to the important job of determining which inventions are deserving of the exclusive property rights provided by patent protection. In his lecture, Under Secretary Kappos called for legislative patent reform. (3) Ask and ye shall receive. In the months between his speech and this publication, Congress has passed the Leahy-Smith America Invents Act. (4) As suggested by his lecture, the Leahy-Smith Act was strongly supported by Under Secretary Kappos because it, inter alia, provides the USPTO with more control over the creation and administration of its operating rules; follows international harmonization principles that can facilitate a more multi-national approach to patent granting; and raises the potential for increased USPTO funding to implement the grand visions of Under Secretary Kappos. (5) The oft-maligned USPTO (6) will now possess tools to right its ship, and we are lucky to have Under Secretary Kappos at the helm. The next few years will reveal whether these new tools can be translated into "a more simplified and streamlined process to acquire patent rights, ultimately enabling inventors to[] bring their ideas to fruition faster and compete in global markets sooner." (7)

   Mr. Kappos's discussion of the USPTO is helpful in that it frames the role of the Federal Circuit court within a broader context of the patent system and patent law policy. Both the Federal Circuit and USPTO remain daily influences on patent law, while other bodies such as Congress and the U.S. Supreme Court hold great but rarely exercised power. In her oral presentation at the symposium, Professor Lisa A. Dolak discussed the Federal Circuit's remarkable response to external political influences, including Congress, the Supreme Court, and the USPTO.8 To her...