Rethinking the Federal Circuit's Patent Monopoly
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.