FedCircuitBlog

Guest Post by Laura G. Pedraza-Fariña

When the 97th Congress passed The Federal Courts Improvement Act establishing the Federal Circuit as a centralized patent appeals court, Congress was predominantly concerned with addressing the wildly divergent set of patent rules developed by different circuit courts.1 Patent uniformity—and therefore certainty and notice to the nation’s innovators—drove much of the debate around the need for a centralized patent appeals court.2

Our modern technological and legal environment, however, could not be more different from the pre-genetic engineering, pre-Internet 1980s society. The late 1980s and 1990s ushered the modern age of genetic engineering and, with it, the possibility of patenting genes, gene editing technology, and diagnostic methods based largely on genetic sequencing.3 The emergence of the internet, and therefore of internet-based business models and software business patents, has also profoundly changed the types of patents that now dominate the Patent and Trademark Office (PTO) and the Federal Circuit’s dockets.4

Guest Post by Greg Reilly

For over a decade, patent litigation has been surprisingly concentrated in a single federal district court. At one time, almost half of the nation’s patent litigation occurred in small towns in eastern Texas.1 Now, 20% of patent litigation occurs before a single judge based in Waco, Texas.2 This concentration of patent litigation is not the result of the inherent characteristics of these districts but instead of the affirmative efforts of particular judges to attract patent cases to their courthouses.3 Scholarly commentary of this forum selling and patent litigation concentration, including by myself, has been largely critical.4 The primary objection is that the districts and judges competing for patent litigation improperly skew procedures in favor of the patentees who make the forum choice.5

Guest Post by Megan M. La Belle†

Forum shopping in patent cases is not a new phenomenon. To be sure, the primary reasons Congress established the U.S. Court of Appeals for the Federal Circuit in 1982 were to increase uniformity in patent doctrine and reduce forum shopping.1 Instead of eliminating forum shopping, however, the creation of the Federal Circuit merely shifted plaintiffs’ focus from appellate courts to district courts when looking for a friendly forum to pursue patent infringement suits.2

Guest Post by J. Jonas Anderson

Patent litigation is highly concentrated before a handful of district court judges. Judge Alan Albright of the Western District of Texas is the latest high profile “patent judge,” receiving over 20% of the patent cases nationwide in 2020 and on track to surpass that figure in 2021.1 But, he is not the first judge to have such a heavy patent caseload: Judge Gilstrap of the Eastern District of Texas received northward of 40% of all U.S. patent cases as recently as 2016;2 and a number of judges in the district of Delaware consistently receive a very large number of patent cases.3 While all district court judges are generalists, various judges, including Judge Albright and Judge Gilstrap have used procedural mechanisms and their courts’ assignment practices to become de facto specialists.4 Judge Albright now receives more patent cases per year (he’s on track for 926 this year) than the amount of patent appeals heard by the entire Federal Circuit (around 835 appeals).5 

Last Thursday the Federal Circuit granted en banc review and vacated a prior panel decision in Rudisill v. McDonough, a veterans case. According to last week’s order, the en banc court will consider the question of a veteran’s statutory entitlement to education benefits under the Montgomery GI Bill and the Post-9/11 GI Bill, and in particular what the correct entitlement period is when considering both bills and multiple qualifying periods of service. Here are the details.

Guest Post by Jason Rantanen

In its 2021 Arthrex decision, the Supreme Court rewrote the procedural process that Congress created for reviewing decisions by Patent Trial and Appeal Board (PTAB) judges.1 Rather than directly appealing to the Federal Circuit (or filing an action in the Eastern District of Virginia), a party that is dissatisfied with the outcome at the PTAB can petition the Director of the United States Patent and Trademark Office (the Director) for rehearing.2 This post summarizes some of my thoughts on the effects of Arthrex on PTAB decision-making, especially when PTAB decisions are appealed to the Federal Circuit. Overall, I’m skeptical that Arthrex presents a great opportunity for the Director to engage in patent policymaking. Given the way that United States Patent and Trademark Office (PTO) review is structured, there’s relatively little room for the Director to engage in policy-shaping through review of PTAB decisions. There are many other ways in which the Director can influence patent policy, and these are likely to be more promising paths than exercising direct oversight over individual PTAB decisions.

Guest Post by Tejas N. Narechania*

The Supreme Court’s decision in Arthrex is the latest in a growing set of decisions regarding administrative patent law. A close look at this entire series suggests that Arthrex is a culmination of a subtle shift in the Court’s approach to such cases. Where the Court once lauded the Patent Office’s expertise, the Court’s more recent decisions have emphasized flexibility and political accountability in patent decision-making. This development is both significant and salutary. For one, it marks the ongoing maturation of administrative patent law as one branch of administrative law, subject to the influences of the myriad administrative law values beyond expertise. This shift, moreover, is constructive, subjecting innovation- and access-governing principles to more democratic constraints.

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.

Next week, in an en banc session, the Federal Circuit will hear arguments in Taylor v. McDonough, a veterans case. The court will consider whether equitable estoppel may be used against the government with respect to establishing the effective date of an award pursuant to 38 U.S.C. § 5110. In particular, the court will consider several related questions: (1) whether “granting Mr. Taylor’s claim of entitlement to an earlier effective date under the doctrine of equitable estoppel be contrary to statutory appropriations and thus barred by the Appropriations Clause;” (2) if equitable estoppel does not apply, whether Taylor has a claim for “denial of a constitutional right of access to [Veterans Affairs] processes for securing disability benefits for which he met the eligibility criteria;” and (3) if a right of access exists, whether the right of access was violated here and what the remedy is. This is our argument preview.

This morning the Federal Circuit released a notice that its 2022 Judicial Conference, originally scheduled for April 1, has now been moved to September 9, 2022. The court will no longer be sitting for oral argument on September 9, and the calendar has been updated on its website. Here is the full text of today’s announcement.