In their challenging and extensively researched study, Professors Craig Allen Nard and John F. Duffy argue that Congress's decision in 1982 to give to the Court of Appeals for the Federal Circuit exclusive jurisdiction over patent litigation is no longer a good idea, if it ever was.1 Instead, they posit, jurisdiction should be shared among several of the federal courts of appeals, somewhat in the manner it was before 1982. They extract from recent criticisms of the court's work the conclusion that a return to diversity injudicial appellate review, despite the problems that existed and that led to the 1982 restructuring, would produce decisions more in line with their sense of how patent law policy should be evolving. The thesis presented by Professors Nard and Duffy raises a number of questions. A central one, one to which we will devote some attention, is whether the perceived shortcomings in the world of patent law are within the ability of courts to cause or cure, and, to the extent they are, whether having more rather than fewer judges at work on them would likely help or hurt.
When the Act creating the United States Court of Appeals for the Federal Circuit was signed twenty-five years ago, it was understood that this newest of the circuit courts was something of an experiment.2 The new court had two characteristics that differentiated it from its sister circuits. One was that its jurisdiction was to be based entirely on subject matter, not geography. The other was that in the subject matter areas that were assigned to it, the court would have exclusive jurisdiction, that is, no other circuit court would hear appeals in those subject matter areas.3
Though having a circuit court with only those characteristics is unique to the Federal Circuit, the Federal Circuit is not the only circuit with subject matter jurisdiction exclusive to that circuit. The United States Court of Appeals for the District of Columbia Circuit, like the eleven numbered regional circuits, derives its basic jurisdiction from the general statutes designed for geographic-based circuits. In addition, however, the D.C. Circuit hears appeals in specified subject matter areas assigned to it by Congress.4
The effect of assigning specified subject matter areas to a single court of appeals is to provide nationwide uniformity in those areas, thus making the designated court the final arbiter of the applicable law, subject only to Supreme Court review. Since much Supreme Court review results from the need to settle differences between the several circuit courts of appeals, the consequence of courts having exclusive jurisdiction is that the decisions of the Federal Circuit and the D.C. Circuit in their respective subject matter areas will be the primary methods for resolving disputes under the applicable laws, and this has proven to be the case.5
To put in perspective the debate about uniformity (one court) versus diversity (multiple courts) in the decisional process, it is important to recognize the different approaches to the judicial function called for by the different ways in which legal rules are framed. Historically, the framing of legal rules was a function of the judicial process. Each new set of facts required the courts to determine whether a plaintiffs pleading stated a cognizable cause of action. Each set of facts for which relief could be granted either fit a prior precedent or called for a new or revised rule. Thus evolved the common law, and the courts were known as common-law courts.6
Today, legislative enactments and their by-products, in the form of agency rules and regulations, have all but supplanted the common law. In particular, the federal courts do not function as common-law courts, and there is no federal general common law.7 The rights vindicated in the federal courts derive from legal rules established by others-the Constitution, treaties, and, importantly, legislation enacted by Congress and agency rules and regulations adopted pursuant to congressional enactments. …