Improving Federal Circuit Doctrine Through Increased Cross‐Pollination

• DOI: http://doi.org/10.1111/ablj.12099
• Published date: 01 June 2017
• Date: 01 June 2017
• Author: Lynda J. Oswald

Improving Federal Circuit Doctrine

Through Increased Cross-Pollination

Lynda J. Oswald*

INTRODUCTION

In the early years of the U.S. Court of Appeals for the Federal Circuit,

commentators were enthusiastic about the court and its unique status as

a specialized appellate court,

1

asserting that patent law had been ren-

dered “more uniform, easier to apply, and more responsive to national

interests,”

2

that “[t]he net effect of the Federal Circuit’s work ... has

been to strengthen the incentive to innovate,”

3

and the fervid “[w]e

enter the final decade of [the twentieth] century with a dramatically

revitalized patent system, one more powerful than any this country has

ever had since the inception of the patent system 200 years ago.”

4

*Louis and Myrtle Moskowitz Research Professor of Business and Law, Stephen M. Ross

School of Business at the University of Michigan.

1

The term “specialized” is generally used to describe a court whose jurisdiction is demarcated

by the subjectmatter of the cases ithears; see Rochelle C. Dreyfuss, Forumsof the Future: The Role

of Specialized Courts in Resolving Business Disputes,61B

ROOK.L.REV.1,5(1995);PaulR.Gugliuzza,

Rethinking Federal Circuit Jurisdiction, 100GEO. L.J. 1437, 1445–46 (2012), as opposedto geogra-

phy or to being a generalist court. See Edward K. Cheng, The Myth of the Generalist Judge,61

STAN.L.REV. 519, 526–27 (2008). Some commentators prefer the term “centralized” or

“concentrated,” rather than “specialized,” to describe a court that hears all cases of a particular

subject matter (e.g., tax or bankruptcy). See Daniel J. Meador, A Challenge to Judicial Architecture:

Modifying the Regional Design of the U.S. Courts of Appeals,56U.C

HI.L.REV. 603, 613–1 4 (1989);

Craig Allen Nard & John F. Duffy,Rethinking Patent Law’s Uniformity Principle,101N

W.U.L.REV.

1619, 1642 (2007). Using these definitions, the Federal Circuit would be both centralized and

specialized. See Gugliuzza, supra, at 1446n.28 (citing Nard& Duffy, supra, at 1642–45).

2

Rochelle Cooper Dreyfuss, The Federal Circuit: A Case Study in Specialized Courts, 64 N.Y.U.

L. REV. 1, 74 (1989).

3

Gerald Sobel, The Court of Appeals for the Federal Circuit: A Fifth Anniversary Look at Its

Impact on Patent Law and Litigation,37A

M.U.L.REV. 1087, 1092 (1988).

4

Lawrence G. Kastriner, The Revival of Confidence in the Patent System,73J.PAT.&TRADEMARK

OFF.SOC’Y5, 5 (1991).

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C2017 The Author

American Business Law Journal V

C2017 Academy of Legal Studies in Business

247

American Business Law Journal

Volume 54, Issue 2, 247–292, Summer 2017

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The Federal Circuit is now over three decades old, and the bloom is

off the rose. Scholars increasingly worry that the Federal Circuit has

brought “less certainty and predictability to patent enforcement,”

5

that

patent law lacks “diversity and competition” as a result of Federal

Circuit specialization,

6

and that the Federal Circuit has “negatively

impact[ed] innovation policy.”

7

Arguments that the creation of this spe-

cialized court for patent appeals has led to excessive formalism, to inac-

curate patent law, and to doctrinal rigidity have some merit. Creation of

the Federal Circuit has resulted in patent exceptionalism, in which pat-

ent doctrine now veers too far from the mainstream of American law.

Arti Rai summed up the stance of many scholars when she asserted that

“[t]he central problems” in the U.S. patent law system stem from Con-

gress’s “mistake in institutional design” in creating the Federal Circuit

initially.

8

Commentators often base their criticisms of the Federal Circuit on the

lack of “percolation” in patent law caused by having a single specialized

appellate court look at patent appeals.

9

They argue that the current

system permits too few voices to be heard in patent cases, resulting in

patent doctrine that is “isolated and sterile.”

10

Their solution to this

perceived problem is to increase the voices looking at patent law—often

through radical or improbable proposals, such as splitting patent juris-

diction between the Federal Circuit and one or more of the regional cir-

cuits or abolishing the Federal Circuit altogether.

11

5

Glynn S. Lunney, Jr., Patent Law, the Federal Circuit, and the Supreme Court: A Quiet Revolution,

11 SUP.CT.ECON.REV.1,76(2003).

6

Nard & Duffy, supra note 1, at 1675.

7

John R. Thomas, Formalism at the Federal Circuit,52AM.U.L.REV. 771, 775 (2003).

8

Arti K. Rai, Engaging Facts and Policy: A Multi-Institutional Approach to Patent System Reform,

103 COLUM.L.REV. 1035, 1040 (2003).

9

See infra Part I.B (addressing percolation).

10

Nard & Duffy, supra note 1, at 1620.

11

See, e.g., Cecil D. Quillen, Jr., Commentary on Bessen and Meurer’s Patent Failure: An Industry

Perspective,16J.I

NTELL.PROP. L. 57, 75–77 (2008) (describing two possible reforms to

address the problems with the Federal Circuit: the adoption of a “parallel appellate track

for patent appeals” or reinstating jurisdiction of patent law appeals within the general

jurisdiction of the federal appellate courts). Even regional circuit judges have made this

argument. For example, Judges Wood and Posner, both of the Seventh Circuit, have each

248 Vol. 54 / American Business Law Journal

These approaches are not only drastic, they are wrong. Congress’s

goals in creating the Federal Circuit were to increase efficiency, unifor-

mity, and accuracy in patent appellate decision making.

12

Shifting patent

law back, in whole or in part, to the regional circuits, might enhance

accuracy (by allowing more courts input into the creation of patent doc-

trine), but it would do so at the almost certain cost of decreased unifor-

mity and efficiency.

It would be counterproductive and disruptive to institute radical

changes in the court’s structure or jurisdiction when we could preserve

uniformity and increase accuracy (or at least instill a closer relationship

between patent law and mainstream American law) through less draco-

nian measures. A more effective, efficient, and realistic reform proposal

would focus on fostering “cross-pollination” in Federal Circuit jurispru-

dence; this would increase the exposure of Federal Circuit judges to

broader notions of American legal doctrine so that patent doctrine

would become more coherent and balanced and more consistent with

traditional legal norms.

Part I of this article outlines the advantages and disadvantages associ-

ated with the creation of specialized courts and defines the concepts of

percolation and cross-pollination as they apply to the development of

court doctrine. Part II examines the creation, objectives, and jurisdic-

tion of the Federal Circuit, and discusses scholarly criticism of the Fed-

eral Circuit’s development of patent doctrine. Part III analyzes the role

of percolation in Federal Circuit doctrine, while Part IV examines the

role of cross-pollination in Federal Circuit doctrine—a concept that has

received considerably less scholarly attention than percolation in the

development of patent law. Part V sets forth a proposal to increase

cross-pollination of Federal Circuit doctrine through enhanced sitting-

by-designation practices. This two-pronged proposal would simulta-

neously (1) increase the exposure of Federal Circuit judges to more

generalist legal issues and (2) enable regional circuit judges to infuse

their generalist approach in patent appellate decision mak ing. More

advocated for the Federal Circuit’s abolishment. See Richard A. Posner, Will the Federal

Courts of Appeals Survive Until 1984?: An Essay on Delegation and Specialization of the Judicial

Function,56S.C

AL.L.REV. 761 (1983); Diane P. Wood, Keynote Address: Is It Time to Abolish

the Federal Circuit’s Exclusive Jurisdiction in Patent Cases?,13C

HI.-KENT J. INTELL.PROP.1

(2013).

12

See infra Part II.A.

2017 / Federal Circuit Cross-Pollination 249