bethShaw-0580editConvertedProfile-e1360002102239Featured Expert Column

Beth Z. Shaw, Brake Hughes Bellermann LLP

*Editor’s note: The Legal Pulse welcomes Guest Commentary submissions offering a contrary perspective on the Federal Circuit’s exclusive patent appeal jurisdiction. Anyone with an interest in doing so please comment on this post with an offer to write.

In a recent speech, Chief Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit proposed abolishing the U.S. Court of Appeals for Federal Circuit’s exclusive jurisdiction in patent cases. Judge Wood is not the first to suggest reevaluating the Federal Circuit jurisdiction, and she won’t be the last. But while her idea is interesting and worth examining, it does not present a better approach to resolve what she called “the problems” that the Federal Circuit’s exclusive jurisdiction was designed to address.

Over thirty years ago, Congress created commissions to study the number of cases appealed to federal courts and the Supreme Court. The commissions found that filings in federal courts had increased substantially—but judgeships had not increased at all. The commissions also identified four major consequences of the courts’ inability to deal with increased caseloads: circuit splits on issues of national law; delay; burden on the Supreme Court to resolve circuit splits; and uncertainty even without circuit splits. The commissions therefore recommended a national court of appeals, and Congress created the Court of Appeals for the Federal Circuit on October 1, 1982.

Critics worried that specialization would produce a court with tunnel vision, judges becoming overly sympathetic to the policies promoted by the law that they administer, or judges who are biased in favor of the attorneys that regularly appear before them. Partly out of appreciation for the dangers of specialization, the law did not limit the Federal Circuit’s jurisdiction to patent cases. Intellectual property appeals make up less than half of the court’s docket. The rest of the court’s docket includes personnel appeals, veterans’ appeals, international trade cases, takings cases, tax, contracts, and other issues.

Judge Wood acknowledged these facts, but questions the effectiveness of the Federal Circuit to exclusively handle patent appeals. She is not proposing the elimination of the Federal Circuit itself, but rather the removal of its exclusive jurisdiction over patent appeals. She argues that this will provide the Supreme Court with the benefit of various appellate court viewpoints on patent issues.

This proposal seems to presume that the Supreme Court is not already exposed to competing viewpoints in patent cases–simply because there are not currently other appellate courts with jurisdiction over patent cases. Yet, a review of recent cases taken by the Supreme Court reveals an abundance of dissenting and concurring opinions among the judges of the Federal Circuit itself. As just one example, in the famous gene-patenting Myriad Genetics case, each three members of the panel wrote separately prior to the Supreme Court taking the appeal. The appellate opinion was over 100 pages long. And in the most recent case taken by the Supreme Court regarding attorney fees in exceptional cases, Highmark Inc. v. Allcare Management Systems, Inc., there is a lengthy dissent by Judge Mayer. In that dissent, Judge Mayer discusses the purpose, history, and role of the Federal Circuit itself. These are just a few recent examples, but they hardly represent the settled uniformity that Judge Wood seems to fear the Federal Circuit has created.

Judge Wood also argues that using her proposal, the country could avoid the forum shopping issues of the 1970s by employing a specialized system known as a Judicial Panel on Multidistrict Litigation, which would determine where a patent appeal would go based on a lottery. Judge Wood does not address the backlog, delay, and burden on the courts that this change would cause. In fact, she appears mainly to question the value of uniformity in patent law that may or may not already exist at the appellate level. The irony here is that, as Weil, Gotshal & Manges partner Edward Reines recently pointed out, “the bar of the court often complains that each judge holds independent views, creating too much panel-to-panel variability.”

Over just the past three years, we have seen President Obama appoint six active judges, after six other judges took senior status or left the bench. These new judges represent a 50% turnover in the 12 active judges on the Federal Circuit in these three years. Perhaps we should give these new judges at least a chance to provide more of the “competing viewpoints” that some seem to think are lacking.