Recently FedCircuitBlog, in conjunction with the Tsai Center for Law, Science and Innovation at SMU Dedman School of Law, hosted its third online symposium. Titled “Patent Law and Institutional Choice,” this symposium focused on the latest legal developments and judicial decisions addressing the institutional structure of the U.S. patent system and the role of its institutions. Over the past several weeks, FedCircuitBlog published written contributions from each of the symposium’s nine panelists. Here, we wrap up our online symposium by linking to and highlighting the focus of each contribution.
Panel I: The Rise of the Western District of Texas: Forum Selling and Forum Shopping in Patent Trial Courts; Or, the Failure of T.C. Heartland
J. Jonas Anderson called for a reinvigoration of the Patent Pilot Program in response to the “extreme concentration” of patent cases in the Western District of Texas and, in particular, its division in Waco, Texas. In his contribution, he explained how the Federal Circuit’s limited tools of mandamus and review of the Western District of Texas’s decisions on appeal, as well as the attention of the Supreme Court and Congress, have done little to stem the number of cases concentrated in Waco. He highlighted his view that reviving the Patent Pilot Program, applying it to all district courts, and making it the only way that patent cases are assigned would be a positive step towards distributing patent cases. As for its benefits, he explained how the program would increase the overall expertise of the judiciary and maintain its generalist tradition.
Megan M. La Belle looked at venues with high concentrations of patent litigation. She noted that “hot spots” for patent litigation in district courts have existed since the creation of the Federal Circuit, the creation of which effectively moved the focus of patent litigants from finding friendly appellate courts to finding friendly district courts. The explosion of patent litigation in the Western District of Texas, however, has been different, she conceded, and the Federal Circuit has recently shown a willingness to grant writs of mandamus regarding motions to transfer venue. La Belle, though, cautioned against the use of writs of mandamus to shape patent policy and, in particular, the concentration of patent cases and the transfer of cases to friendlier venues. Writs of mandamus, she explained, are reserved for “patently erroneous” results and abuses of discretion, so an overuse may reduce their importance. These writs of mandamus, she continued, also create precedent that guides all lower courts, which goes beyond “error correction.” La Belle called for Congress and the Judicial Conference, instead of the Federal Circuit through writs of mandamus, to address this issue.
Greg Reilly examined reasoning proffered in defense of the concentration of patent cases in the Eastern District of Texas and, more recently, the Western District of Texas. Reilly highlighted two defenses for what he calls “forum selling.” First, he explained, patent litigation concentration results in an effectively specialized patent district court that provides more expert resolution. Second, moreover, procedural skewing in favor of patentees counteracts other anti-patentee aspects of the current patent system. These defenses, Reilly argued, are results-oriented arguments, and a more process-oriented approach exposes their flaws. Reilly concludes that a more process-oriented approach that respects the proper lines of authority and democratic accountability would better serve all parties within the patent system.
Panel II: Arthrex, the PTAB, and the USPTO Director’s New (Temporary?) Authority over Patent Opposition Proceedings
Tejas N. Narechania, in a piece also published with the California Law Review Online, argued that the Supreme Court’s decision in Arthrex should be viewed as the “culmination of a subtle shift” in the Court’s approach to administrative patent law. While early cases focused on the expertise of the Patent Office, he noted, recent cases have prioritized the need for flexibility and political accountability. Arthrex, he contended, exemplifies this shift, because the holding subordinates the Patent Trial and Appeal Board to the judgment of the politically-appointed Director of the Patent Office. Narechania highlighted two reasons for emphasizing this development. First, he noted, Arthrex “marks the ongoing maturation of administrative patent law—i.e., administrative law’s application to our patent regime—as one branch of administrative law.” Additionally, he continued, Arthrex grants more political and democratic control through the Director “to better tailor innovation- and access-governing principles to democratic will.”
Jason Rantanen analyzed Federal Circuit decisions arising from inter partes review proceedings and district court cases for clues on how the USPTO’s Director can engage in policymaking. Rantanen noted that, with only 40% of the PTAB’s IPR proceedings resulting in a Federal Circuit decision and the Federal Circuit affirming these decisions 78% from 2015-2021, the Director has little ability to push his or her policy preferences through review of PTAB decisions. Rantanen theorized that Arthrex will thus not lead to greater policymaking by the Director, and, he concludes, other paths may be more effectual for influencing patent policy.
Dr. Christal Sheppard, a former Regional Director of the USPTO, looked back on her time with the Patent Office to evaluate the Patent Office’s structure after Arthrex. She noted how the PTAB was initially created to remedy quality problems within the Patent Office and eliminate bad patents from appearing in abusive litigation. In her contribution she recognized, however, that the PTAB has created new problems without necessarily resolving the old problems. With the decision in Arthrex, moreover, she highlighted that the PTAB has adopted a process similar to the process used by the International Trade Commission. The USPTO Director may not be able to shape patent policy through increased oversight of the PTAB, but, Sheppard noted, increased transparency regarding the Director’s potential for influence addresses a valid concern.
Panel III: The Federal Circuit: Is Its Exclusive Jurisdiction Still Needed Given the Supreme Court’s Renewed Interest in Resolving Disputes over Patent Law?
Paul R. Gugliuzza suggested that, after forty years, the Federal Circuit experiment has failed. In his view, the Federal Circuit has not led to uniformity in patent law or strengthened patent rights thanks both to disagreement within the Federal Circuit itself and to the Supreme Court’s repeated efforts to push back against Federal Circuit decisions. But, Gugliuzza argued, the Federal Circuit has made the overall patent system more important, as seen through the increase in patents and patent lawyers. This increased importance, he maintained, has resulted in a patent system that does not serve the public interest. As a result, Gugliuzza called for the elimination of the Federal Circuit.
Laura G. Pedraza-Fariña called for an end of administrative patent law exceptionalism to allow for more responsiveness by the Patent Office. The Federal Circuit, she noted, has focused on adopting bright-line rules–perhaps in part due to its expertise in patent law–that grant certainty and notice but reduce the ability to respond to changing economic and sociological realities. The Supreme Court, by contrast, appears to disfavor this assessment, as seen in cases like KSR and eBay, she highlighted. Pedraza-Fariña contended that the patent law policies must balance the relevant concerns, in her words “balance innovators’ need for certainty and notice with the public’s interest in policies that are responsive to changing background social and economic environments.” In this regard, one approach, she maintained, is granting more deference to the Patent Office. While admitting that wholesale deference to the Patent Office would require Congressional action, she encouraged “the type of nuanced on-the-ground engagement with economics and sociology that is simply unavailable to an appeals court.”
I explored historical justifications for the creation of a national patent court and, ultimately, the Federal Circuit. I noted how prior to 1891 long delays by the Supreme Court to resolve patent cases generated calls for a national patent court. After Congress replaced the Supreme Court’s appellate jurisdiction with petition jurisdiction, I highlighted, calls for a national patent court continued, but focused instead on a need for uniformity in patent infringement and validity determinations. Then, after the Supreme Court recognized non-mutual defensive collateral estoppel (such that a patent declared invalid in one Circuit would be recognized as invalid in other Circuits), I pointed out, the calls for a national patent court shifted to the Supreme Court’s failure to resolve Circuit splits in patent cases and a desire for uniformity in principles of patent law. While this last argument succeeded and the Federal Circuit was formed, I recognized that the Supreme Court’s recent interest in deciding patent cases may actually undermine this justification for the Federal Circuit’s exclusive jurisdiction over appeals in patent cases. I therefore asked what other justification might exist today for the Federal Circuit’s jurisdiction. I then highlighted the argument that errors in the Supreme Court’s resolution of patent cases may be a reason to have an intermediate appellate court with expertise in patent law.