Here is an update on recent (and classic) scholarship related to the Federal Circuit and its jurisdiction and jurisprudence. This month we are highlighting one piece related to the Federal Circuit’s treatment of patent law’s doctrine of equivalents, one piece related to the Federal Circuit’s jurisdiction over government contracts, and one piece of classic scholarship related to the court’s formation.

Daryl Lim, Judging Equivalents, SSRN (August 16, 2019)

How has the doctrine of equivalents been applied over the last ten years? In this article, John Marshall Law School professor Daryl Lim answers that question in exacting detail. Lim surveys 316 district court and Federal Circuit cases between 2009 and 2018, providing insight on questions like “what arguments are most likely to win?” and “[w]hat role do factors like litigation venue, industry, and posture have on outcomes?”

Nathaniel Castellano, ‘Other Transactions’ Are Government Contracts, And Why It Matters, 48 Public Contract L.J. 3 (2019)

Given unique implications of entering into government contracts, private parties ought to know when they’re contracting with the United States government. Due to “Other Transactions Authority,” however, it can be difficult to determine if an agreement with a U.S. agency rises to the level of a government contract. In this article, Arnold & Porter Associate Nathaniel Castellano argues that “Other Transactions” are indeed government contracts. Thus, he explains, an “Other Transaction” carries with it not only the principle of sovereign immunity, but also the “pervasive precedents” of the Federal Circuit.

Rochelle Cooper Dreyfuss, The Federal Circuit: A Case Study in Specialized Courts, 64 N.Y.U. L. Rev. 1 (1989)

In this article published seven years after the Federal Circuit’s formation, New York University Law Professor Rochelle Cooper Dreyfuss discussed reasons for the court’s formation, analyzed how the court was changing patent law, diagnosed early problems confronting the court, and made suggestions about how the court might “conceptualize its role in the judicial hierarchy.” Notably, Professor Dreyfuss concluded then that “the CAFC experiment has worked well for patent law, which is now more uniform, easier to apply, and more responsive to national interests.”