Starting next week, Fed Circuit Blog will publish written contributions from law professors participating in Fed Circuit Blog’s third online symposium. Entitled “Patent Law and Institutional Choice,” this symposium explores the institutional structure of the U.S. patent system and the roles of its institutions: the U.S. Congress; U.S. Patent and Trademark Office; federal district courts and juries; the U.S. Court of Appeals for the Federal Circuit; and the U.S. Supreme Court. Confronting critiques of this structure and these institutions, the symposium considers how the U.S. patent system may be improved to further the innovation economy. Here is more information on the topics these professors will discuss in their written contributions.
Arthrex, the PTAB, and the USPTO Director’s New (Temporary?) Authority over Patent Opposition Proceedings
In June, 2021, the Supreme Court ruled that the unreviewable authority of Administrative Patent Judges of the Patent Trial and Appeal Board was not compatible with the manner of their appointment under the Appointments Clause of the Constitution. As a result, the Court invalidated a portion of the patent statute that prevented the presidentially-appointed Director of the U.S. Patent and Trademark Office from reviewing Board decisions and issuing new decisions on behalf of the Board. Since then, the U.S. Patent and Trademark Office has issued an interim procedure for Director review of Board decisions. But members of Congress have suggested that a more radical restructuring of review authority may be appropriate. This panel will consider these recent developments, with an eye toward identifying an appropriate mechanism for ensuring accurate decision making over invalidity disputes while recognizing the political accountability required by the Appointments Clause.
FedCircuitBlog plans to post written contributions about this topic from the following participants:
- Tejas N. Narechania, Robert and Nanci Corson Assistant Professor of Law, University of California, Berkeley, School of Law and Faculty Co-Director of the Berkeley Center for Law & Technology
- Jason Rantanen, Director of the Innovation, Business & Law Center and David L. Hammer and Willard L. “Sandy” Boyd Professor, University of Iowa College of Law
- A. Christal Sheppard, Former Regional Director of the Elijah J. McCoy Midwest Regional United States Patent and Trademark Office, Adjunct Professor of Law, Nebraska College of Law and University of Minnesota Law School, and Distinguished Fellow and Faculty with Nebraska Governance and Technology Center
The Rise of the Western District of Texas: Forum Selling and Forum Shopping in Patent Trial Courts; Or, the Failure of T.C. Heartland
Prior to 2017 the Eastern District of Texas attracted criticism as an example of forum selling. But it was the Federal Circuit’s interpretation of the patent venue statute that some viewed as creating the opportunity for forum shopping by patent owners—and patent owners evidently overwhelmingly preferred to file infringement actions in the Eastern District of Texas. Following the Supreme Court’s holding in 2017 that a domestic corporation “resides” only in its state of incorporation for purposes of the patent venue statute, however, many observers speculated that the holding spelled doom for patent owners seeking to secure venue in the Eastern District of Texas. While rumors of the demise of the Eastern District of Texas have been proven to be exaggerated, in the last few years the Western District of Texas has emerged as a new favored forum of patent owners. This panel will explore forum selling and forum shopping in patent trial courts, along with alternative ways of organizing patent infringement litigation in trial courts.
FedCircuitBlog will post written contributions about this topic from the following law professors:
- Jonas Anderson, Associate Dean for Scholarship and Professor of Law, American University Washington College of Law
- Megan M. La Belle, Co-Director of the Law and Technology Institute and Professor of Law, The Catholic University of America Columbus School of Law
- Greg Reilly, Co-Director of the Program in Intellectual Property Law and Associate Professor of Law, Illinois Tech Chicago-Kent College of Law
The Federal Circuit: Is Its Exclusive Jurisdiction Still Needed Given the Supreme Court’s Renewed Interest in Resolving Disputes over Patent Law?
President Reagan and Congress created the Federal Circuit in 1982 to eliminate forum shopping that resulted from the Supreme Court failing to resolve splits of authority in the field of patent law amongst the regional appellate courts. In the last ten years, however, the Supreme Court has heard oral argument and issued opinions in numerous patent cases, at least two each term and in one term in six cases. Given the Supreme Court’s renewed interest in resolving disputes over patent law, this panel will consider the question of whether the Federal Circuit’s exclusive jurisdiction is still needed and, more broadly, the role of the Federal Circuit in the nation’s current institutional structure for resolving patent disputes.
On this topic, FedCircuitBlog will post written contributions from the following law professors:
- Laura Pedraza-Fariña, Associate Dean for Innovation and Partnerships and Professor of Law, Northwestern University Pritzker School of Law
- Paul Gugliuzza, Professor of Law, Temple University Beasley School of Law
- David O. Taylor, Symposium Chair, Director of the Tsai Center for Law, Science and Innovation, and Professor of Law, SMU Dedman School of Law
We hope you enjoy this online symposium!