The Federal Circuit as a Federal Court

Article excerpt

ABSTRACT

The U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over patent appeals and, as a consequence, the last word on many legal issues important to innovation policy. This Article shows how the Federal Circuit augments its already significant power by impeding other government institutions from influencing the patent system. Specifically, the Federal Circuit has shaped patent-law doctrine, along with rules of jurisdiction, procedure, and administrative law, to preserve and expand the court's power in four interinstitutional relationships: the court's federalism relationship with state courts, its separation of powers relationship with the executive and legislative branches, its vertical relationship with trial courts, and its horizontal relationship with the regional circuits. The Article leverages this descriptive contribution to consider whether specialized or semispecialized courts will inevitably exclude other institutions from shaping the law within their domain. Although judicial behavior will likely vary depending on the court's jurisdictional model, the Federal Circuit's power enhancement arguably relates to the court's dual missions to construct a uniform patent law and to provide expert adjudication in patent cases.

TABLE OF CONTENTS

INTRODUCTION
  I. THE FEDERAL CIRCUIT AND THE PATENT SYSTEM
     A. Federal Circuit Patent Jurisdiction
     B. A Patent Crisis?
 II. FEDERAL CIRCUIT FEDERALISM
     A. Federal Question Jurisdiction
     B. The Federal Circuit as a State Court
     C. Jurisdictional Expansion and
        Institutional Dynamics
III. SEPARATION OF POWERS AT THE FEDERAL CIRCUIT
     A. The Federal Circuit as Agency Administrator
        1. Denial of Deference to Fact-Finding
        2. Deciding New Issues on Appeal
     B. How the Executive Branch Pushes Back
     C. The Federal Circuit as a Legislature
     D. Competition for Patent Power: Institutional
        Themes Reconsidered
 IV. THE VERTICAL RELATIONSHIP: THE FEDERAL
     CIRCUIT, THE DISTRICT COURTS, AND THE ITC
     A. The Federal Circuit and the District Courts
        1. Enhancing Power Through Patent Law: The
           Federal Circuit as a Fact-Finder
        2. Enhancing Power Through Procedure: The
           Federal Circuit as a District Court
    B. The Federal Circuit and the ITC
 V. THE HORIZONTAL RELATIONSHIP: THE FEDERAL
    CIRCUIT AND THE REGIONAL CIRCUITS
    A. Explicitly Expanding the Reach of
       Federal Circuit Law
    B. Implicitly Expanding the Reach of
       Federal Circuit Law
VI. POWER EXPANSION: CAUSES AND CONSEQUENCES
    A. Into the Black Hole: Judicial Behavior on a
       Specialized Court
    B. Directions for Future Inquiry: The Perils of
       Semispecialization and the Possibility of
       Limited Specialization
CONCLUSION

INTRODUCTION

One court, the U.S. Court of Appeals for the Federal Circuit, has an enormous influence on patent law and innovation policy. Some of this influence is by design, as the Federal Circuit has near-exclusive jurisdiction over patent appeals. (1) This Article shows how the Federal Circuit has supplemented this already significant authority by impeding other government institutions from shaping patent law. The Federal Circuit's consolidation of power raises questions about whether this semispecialized court will embrace legal reforms that may be needed to ensure the patent system promotes, rather than thwarts, innovation. (2)

The existing scholarship on the power dynamics of the patent system is rich and important (3) but has examined institutional relationships mostly in isolation, independently documenting power struggles between the Federal Circuit and institutions such as the Patent and Trademark Office (PTO), (4) the U.S. district courts, (5) and the International Trade Commission (ITC). (6) This Article, by contrast, comprehensively examines the Federal Circuit's interactions with all other government bodies that encounter patent law. …