Tell Me Again Why We Have a Federal Circuit?

SCOTUS v. CAFCThe Supreme Court just issued a decision in the Medtronic case, and it was a unanimous reversal of the Federal Circuit. Since the Supreme Court first reviewed a patent decision by the Federal Circuit in 1996 (the Federal Circuit was formed in 1982, but it was 14 years before the first review by the Supreme Court), the Federal Circuit has been affirmed a fraction of the time and reversed unanimously a majority of the time.

Has any court’s reasoning ever been so soundly and consistently rejected by the Supreme Court?

If the purpose of the Federal Circuit was to make life easier by unifying patent law, it’s arguably done that. It might be nice if that “unified” court actually got most of the important patent questions right, but I guess you can’t have everything. (To be fair, the Federal Circuit did get affirmed 3 times in the 2010-11 term, but the reversals started again the next term with Mayo v. Prometheus, which was unanimous.)

I get that there’s a certain sense of prestige that comes with having a specialized court for one’s area of law. But wouldn’t it be better to have the courts of appeals get it right more of the time?

Matt Levy

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Matt Levy is Patent Counsel at the Computer and Communications Industry Association, where he handles legal, policy advocacy, and regulatory matters related to patents and is lead blogger for CCIA’s Patent Progress.

Matt joined the CCIA in 2013 from the IP boutique Cloudigy Law, PLLC. He has also been an associate at Finnegan, Henderson, Farabow, Garrett, & Dunner, LLP and at Hogan & Hartson LLP. He got first-hand experience in both patent prosecution and patent litigation, including defending clients against patent trolls.

  • Owen

    Of course, the Federal Circuit has been a disaster for patent law.

    The vast expansion of power for patentees and applicants has been bad for innovation and our economy. The rise of trolls to public awareness has been facilitated by Federal Circuit review. Patentability has grown like a cancer into math, reasoning (Mayo), software (State Street, &c), finance, and more.

    Having a specialist court is inherently corrupt because the judges are invested in their area of practice expanding in power and importance. The Supreme Court doesn’t have enough interest to review a significant fraction of Federal Circuit rulings each year just to keep them in line.

    The idea was to create national consistency in patent law. The result has been continued regional inconsistency in places like East Texas while the consistent national review has made things uniformly worse.

    It’s time to abolish the Federal Circuit and return to generalist regional courts of appeal.

  • J Nicholas Gross

    I think you’re forgetting one teensy weensy difference: the sampling behavior of the SCOTUS is incredibly biased, they take a fraction of a fraction of a % of cases, and when they do its almost invariably b/c they think they will reverse:

    http://www.abajournal.com/magazine/article/a_sixth_sense_6th_circuit_has_surpassed_the_9th_as_the_most_reversed_appeal/

    ” Looking at the seven terms from 2005-06 through 2011-12, the 6th Circuit takes the top spot as most reversed (81.6 percent) under the traditional method, but falls to second-most-reversed under the full method, with a 66.7 percent reversal rate under that system. And the top-most-reversed federal appeals court for those seven terms under the full method?

    Drumroll, please—the 9th Circuit, at 68.2 percent.”

    So should we can the 50 appellate judges on these panels too?