Rethinking the Federal Circuit's Patent Monopoly

In "Rethinking Patent Law's Uniformity Principle," Professors Craig Nard and John Duffy start with the proposition that uniformity is only one of several considerations that should guide the institutional design of our patent system. "Equally important guiding principles include diversity and competition, both of which have been largely absent from patent law for more than 20 years," they write:

The criticisms currently levied against the Federal Circuit — that it maintains excessive insularity, is subject to path dependency in its case law, and produces inadequately nuanced jurisprudence — can be traced back ultimately to the court’s chief structural limitation: The court lacks the benefit of sister-circuit jurisprudence that would engender a healthy competition of rationales and provide a mechanism for testing legal innovations. Accordingly, the article proposes that in addition to the Federal Circuit, at least one, and perhaps two or three, extant circuit courts should have jurisdiction to hear appeals relating to patent law.

This proposal represents a shift in strategy from one dominated by the pursuit of uniformity, to one where competition and diversity are equally important. As the literature from many other areas suggests, a choice between centralized and decentralized institutions cannot and should not be made with
a polar solution. The issue is one of optimization. In 1982
Congress decided that the optimal number of federal appellate courts deciding patent cases was fewer than thirteen; we suggest that the optimal number may also be greater than one.

The authors acknowledge that determining the optimal number of courts is "very difficult, but also not necessary" for purposes of their paper. Nonetheless, they offer "two or three" as "a reasonable number" considering the "importance of moving slowly when embarking upon reform initiatives." In addition to the Federal Circuit, they suggest that at least one extant circuit court be allowed to hear district court appeals relating to patent law. Both the Federal Circuit and United States Court of Appeals for the D.C. Circuit would then have jurisdiction over appeals from the Patent and Trademark Office.

For more "New Patent Scholarship," check out Boston University Law School Visiting Assistant Professor Dennis Crouch's "Patently-O Blog."