The Supreme Court decided in Holmes Group, Inc. v. Vornado Circulation Systems, Inc. that the Federal Circuit's exclusive appellate jurisdiction over a case could not rest solely on a counterclaim for patent infringement. In "Counterclaims, the Well-Pleaded Complaint, and Federal Jurisdiction," Christopher A. Cotropia argues that such an application of the well-pleaded complaint rule should be rethought. "The inability for cases whose only federal law claim is presented in a counterclaim to be heard in a federal forum frustrates both the purposes behind federal question jurisdiction and the legitimate interests of all parties to the lawsuit. In addition, the rule as applied to counterclaims introduces inefficiencies that outweigh any reduction in judicial burdens from using this 'quick rule of thumb. The consequences of such are rule should force Congress and the courts to reevaluate the well-pleaded complaint rule's application to federal law counterclaims, particularly compulsory counterclaims."
His solution would be "to amend the scope of the district court's original jurisdiction to allow a federal law counterclaim to form the basis of the court's jurisdiction. Then, the counterclaim would both vest the district court with original jurisdiction and removal jurisdiction. In addition, allowing a defendant to remove a federal law counterclaim preserves the defendant's interests and allows such a claim to be litigated in a federal forum. The interests in having federal claims decided in a federal forum will be preserved, providing for an increase opportunity for uniformity at the federal level. Finally, allowing counterclaims to be considered for "arising under" jurisdiction would also address any concerning regarding areas of exclusive federal jurisdiction, such as with the patent and copyright jurisdiction under 28 U.S.C. Â§ 1338(a)."
He also writes that "serious consideration should be given to amending the Federal Circuit's jurisdictional statute to decouple it from basic "arising under" jurisdiction. By delinking the two, decision that implicate questions unique to the jurisdiction of the Federal Circuit and issues of patent law, will no longer also address general questions of federal jurisdiction. Such an amendment would allow courts, when dealing with questions of patent appellate jurisdiction, to only deal with those specific questions and not be concerned with, or perhaps oblivious to, the implications of their decision on broader jurisdictional issues."