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Christa Laser is a professor at Cleveland State University College of Law, where she teaches intellectual property, innovation law, and other topics. Her research includes topics of patent law, federal courts, and civil procedure. She was previously a patent trial and appellate litigator at the law firms Kirkland & Ellis and WilmerHale. In the following guest blog post, she discusses her recently published article, Rethinking Patent Law’s Exclusive Appellate Jurisdiction. In this article, she proposes radical changes to the Federal Circuit’s jurisdiction: retaining the Federal Circuit for some appeals but, notably, returning appeals from district courts in patent cases back to the regional circuits. She also urges adoption of the Hruska Commission’s National Court of Appeals, sitting between the Supreme Court and regional circuits.

The United States Court of Appeals for the Federal Circuit was created in 1982 as a compromise to address both practical and political concerns: the Supreme Court lacked the capacity and interest to unify and clarify complex or technically difficult areas of law, leaving key circuit splits undressed; multiple Presidential administrations feared the United States was losing in the international competition for innovation and technology without cohesive and predictable patent law precedent; and academics including most notably Professor Meador believed that the quality of decisions in complex areas of law could be improved by having a court staffed with judges of particular expertise. The Hruska Commission, a body tasked to study the caseload crisis in the federal appellate courts in the 1970s, noted, however, that “the problem of inadequate appellate capacity is not limited to one or two areas of the law.” 

After years of study, the Hruska Commission recommended creation of a new National Court of Appeals seated between the regional federal appellate circuits and the Supreme Court. The new court would hear cases in every area of law as they were referred by the Supreme Court or transferred from regional circuits. The court’s precedent would be binding nationwide on all regional circuits and district courts and reviewable by the Supreme Court. Despite support from the Chief Justice and others on the Supreme Court, the National Court of Appeals was never adopted. Later proposals formed the basis for the Federal Circuit, including Professor Meador’s suggestion of a court of specialized technical expertise. However, even Professor Meador’s proposal urged that the new court should decide issues of environmental law, science, and tax—not solely patent law. During the debates leading up to creation of the Federal Circuit, many cautioned against a court of specialized expertise. To avoid the concerns of specialization, various administrative appeals and veteran’s appeals were added to the Federal Circuit’s jurisdiction to form the scope of its docket today. Nonetheless, the Federal Circuit’s first judges perceived one of the court’s most critical mandates to be the unification and clarification of patent law.

The Federal Circuit judges admirably implemented these functions for four decades, providing nationally uniform decisions on many previously unresolved issues in patent law. However, the environment that might have justified the Federal Circuit changed: the Supreme Court became 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) (over 40% of the court’s docket in 2019, as reported in more detail in the Article), 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 clarified the basic law on many core substantive patent law issues. The most particular concern is that as the Supreme Court increases its involvement in patent law, patent stakeholders now live under threat of the Supreme Court upending their reliance interests. Specifically, with an active Supreme Court, or even the perception of one, patent law created by the Federal Circuit is no longer predictable enough to serve the purposes that the court was created to accomplish. When the Federal Circuit was created, we traded the benefits of experimentation of law in separate regional jurisdictions for the certainty of a unified national patent law at the appellate level; today, loss of experimentation continues without the certainty gains we were promised.

Other 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. But none of these prior proposals take us back to the independent percolation of law that we traded away. This Article proposes returning jurisdiction over all district court patent appeals to the regional circuit courts associated with those courts and nonetheless 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, although far more administrative patent appeals would reach the reimagined Federal Circuit than reached its predecessors). Patent can then percolate with small laboratories of experimentation within each jurisdiction as district courts in a region iterate on and apply new circuit precedent. Circuit splits could be resolved by the Supreme Court as they are in every other area of law. 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. 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.