Rethinking Patent Law’s Exclusive Appellate Jurisdiction

By Christa Laser, Cleveland-Marshall College of Law.

The United States Court of Appeals for the Federal Circuit was created in 1982 to unify and clarify patent law, inter alia. It was built from political compromise after the Hruska Commission, which studied the caseload crisis in the federal appellate courts in the 1970s, initially recommended creation of a new National Court of Appeals that would exist between the regional federal appellate circuits and the Supreme Court. The Federal Circuit judges admirably implemented these functions for four decades.

However, the initial function of the Federal Circuit might no longer be as needed in the current judicial climate. The environment that might have justified the Federal Circuit changed: the Supreme Court is more active in patent law and actively hostile towards the Federal Circuit, the Federal Circuit’s docket shifted to large numbers of administrative patent appeals from the Patent Trial and Appeal Board (PTAB), the strength and competitive position of the U.S. patent system changed, forum and venue practices shifted, patents have become more mainstream, and the Federal Circuit provided nationally uniform decisions on many of the previously-unresolved issues in patent law.

Scholars have urged that the Federal Circuit’s jurisdiction should be modified, such as by adding an additional circuit court by random assignment or litigant selection, expanding the Federal Circuit’s subject matter to include more types of cases, or eliminating the court altogether. This Article proposes retaining the Federal Circuit to continue to hear administrative appeals in patent, trade, or other cases deemed appropriate (similar to the jurisdiction that existed before creation of the Federal Circuit) and returning jurisdiction over all district court patent appeals to the regional circuit courts. Moreover, if it is needed to maintain uniformity of law, the Article recommends creating a National Court of Appeals between the circuit courts and the Supreme Court to decide cases of all types with a need for nationwide uniformity, as was recommended by the Hruska Commission.

Although creation of a new court and modification of the old will likely face severe political hurdles, this Article urges that the uniformity problem should never have been addressed by eliminating regional appellate court jurisdiction in patent law. The problem was with the Supreme Court’s inaction and inability to keep up with its unifying function in all, and especially in complex, areas of law. As the Hruska Commission recommended, any uniformity problem should have been addressed by focusing on the Supreme Court’s structural inability to perform this function. And with changing times, there is no longer as much benefit of patent exceptionalism, particularly when other complex areas of federal law such as copyright, trademark, tax, environmental law, criminal law, and antitrust would also benefit from nationally uniform decisions and technically knowledgeable judges. These concerns could be addressed through the creation of the National Court of Appeals.

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