Academic journal article
By Andrews, Damon C.
Missouri Law Review , Vol. 76, No. 3
I. INTRODUCTION II. PATENT TRENDS AT THE FEDERAL CIRCUIT: A DECADE-BY-DECADE REVIEW A. 1982-1991: Establishing Precedent B. 1992-2001: Technological (and Turbulent) Times C. 2002-2011: Appeals, Evaluation, and Executive Impact III. THE FEDERAL CIRCUIT: PATENT FRIEND OR PATENT FOE? A. Claim Construction B. Nonobviousness C. Patentable Subject Matter 1. Method Patents 2. Biological Arts IV. THE FEDERAL CIRCUIT AND THE SUPREME COURT: A RELATIONSHIP BUILT ON REVERSAL? A. The Supreme Court's Attention to the Federal Circuit B. Harsh Affirmations, Harsher Reversals V. CONCLUSION
Congress significantly altered the landscape of Article III courts when three decades ago it established the Court of Appeals for the Federal Circuit pursuant to the Federal Courts Improvement Act of 1982.1 The Federal Circuit was born from a merger of the Court of Customs and Patent Appeals and the appellate jurisdiction of the Court of Claims, (2) and maintains exclusive jurisdiction over appeals related to governmental contracts, (3) veterans' benefits, (4) and international trade, (5) among other niche areas of federal law. (6) However, no single subject matter under its review has brought the Federal Circuit as much attention (or criticism (7)) as its exclusive jurisdiction over patent appeals. (8)
Several scholars assert that Congress created the Federal Circuit as part of an "experiment" in the judicial specialization of patent law, (9) though it may be more apt to say that necessity--rather than experimentation--is the true mother of the court's invention. (10) Prior to the creation of the Federal Circuit, an appeal from a patent decision in a federal district court was heard in the district court's respective regional circuit court; (11) however, regional circuit courts varied widely in their interpretations of the Patent Act, (12) which led to objectionable forum shopping. (13) Additionally, Congress harbored concerns that the U.S. Patent and Trademark Office (PTO) was granting patents based on inventive standards that were unenforceable in the district and circuit courts across the country where the patents were later litigated. (14) To unify the patent laws, Congress created the Federal Circuit to route appeals to a single court. (15) Currently, patent cases arrive at the Federal Circuit by one of two primary avenues (16): an appeal from a federal district court (17) or an appeal from a decision of the Board of Patent Appeals and Interferences (BPAI),18 an administrative body of the PTO that decides questions of patentability and settles inventor priority disputes. (19)
In the nearly thirty years since the Federal Circuit's first published decision, (20) the court has decided numerous cases that have produced a rich patent jurisprudence. This Article seeks to evaluate that jurisprudence from several perspectives. Part II summarizes the Federal Circuit's patent history in terms of the court's judges, the external factors that have shaped its patent jurisprudence, and the overall success of the court in light of Congress's intent. Part III then evaluates the Federal Circuit's general stance on whether to uphold the PTO's grant or denial of a patent, or a district court's decision to invalidate a patent, with respect to several specific patent law issues, including claim construction. Finally, Part IV analyzes the Federal Circuit's relationship with the U.S. Supreme Court and examines the attention that the Court has given to patent cases throughout the Federal Circuit's existence based on the number of certiorari petitions granted, as well as the Court's treatment of the Federal Circuit's opinions with respect to their outcomes and reasoning. In sum, this Article canvasses the Federal Circuit's patent decisions from several angles to paint a comprehensive picture of the court's patent jurisprudence during the first three decades of its existence. …