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.
Congress created the Federal Circuit in 1982 at least in part to promote uniformity in patent law. At that time, patent law was in disarray, the result of different interpretations of patent law by the various federal appellate courts. The problem that the creation of the Federal Circuit attempted to solve was the fact that the Supreme Court was not resolving these circuit splits in U.S. patent law. But the Supreme Court’s failure to resolve circuit splits regarding differing interpretations of patent law was not always the problem highlighted by advocates for a national patent court, and this particular problem might not even exist today in the absence of the Federal Circuit given the Supreme Court’s recent, renewed interest in deciding patent cases. So, what have been the historical justifications for a national patent court, and what justification might exist today for the Federal Circuit?
Guest Post by Dr. Christal Sheppard
I am a patent law expert. However, a look at recent machinations in patent law, particularly in the United States Patent and Trademark Office’s (USPTO) leadership and the USPTO’s Patent Trial and Appeals Board (PTAB), reveals that many of the issues at the heart of patent law disputes stem from the Administrative Procedures Act (APA), administrative law, constitutional law, and, of course, politics, politics, politics. As a patent expert, I have found myself talking about the APA so often that I unconsciously write Administrative Patent Act by mistake. The United States Supreme Court decision in Arthrex, regarding the composition of PTAB, is the most recent foray into the intersection of administrative law and patent law.1
Guest Post by Paul R. Gugliuzza
Professor Rochelle Dreyfuss, probably the keenest academic observer of the Federal Circuit, memorably called the court “a continuing experiment in specialization.” She was writing in 2004, shortly after the twentieth anniversary of the court’s founding. With the court’s fortieth anniversary approaching in 2022, can we finally answer the question: has the Federal Circuit experiment succeeded?
Online Symposium: To Adapt Patent Law to Modern Innovation Realities, End Administrative Patent Law Exceptionalism
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
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
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.