Experts, Generalists, Laypeople, and the Federal Circuit

By Sipe, Matthew G. | Harvard Journal of Law & Technology, Spring 2019 | Go to article overview

Experts, Generalists, Laypeople, and the Federal Circuit


Sipe, Matthew G., Harvard Journal of Law & Technology


TABLE OF CONTENTS    I. INTRODUCTION                                                575  II. THE PATENT LANDSCAPE TODAY                                  579      A. Administrative Overhaul: from the AIA to Oil States      579      B. District Court Changes: Concentration, Pilots, and the   585         Pursuit of Juries III. METHODOLOGY                                                 591      A. Data Source                                              591      B. Coding Procedure                                         592  IV. ANALYSIS                                                    596      A. PTAB Data                                                597      B. District Court Data                                      605      C. Drawing Comparisons                                      610      D. Critiques and Concerns                                   617   V. MAKING SENSE OF THE DATA: ANTI-EXCEPTIONALISM AND           622      CONTEXT-SPECIFIC DEFERENCE  VI. CONCLUSION                                                  631 

I. INTRODUCTION

I CANNOT STOP WITHOUT CALLING ATTENTION TO THE EXTRAORDINARY CONDITION  OF THE LAW WHICH MAKES IT POSSIBLE FOR A MAN WITHOUT ANY KNOWLEDGE OF  EVEN THE RUDIMENTS OF CHEMISTRY TO PASS UPON SUCH QUESTIONS AS  THESE... FOR ONLY A TRAINED CHEMIST IS REALLY CAPABLE OF PASSING UPON  SUCH FACTS... HOW LONG SHALL WE CONTINUE TO BLUNDER ALONG WITHOUT THE  AID OF UNPARTISAN AND AUTHORITATIVE SCIENTIFIC ASSISTANCE IN THE  ADMINISTRATION OF JUSTICE, NO ONE KNOWS.  --JUDGE LEARNED HAND (1) 

Who should decide a patent case? There is no shortage of anecdotal--and contradictory--answers, depending on who is asked. Jurors are either woefully unqualified (2) or paragons of virtue (3). Judges need either more technical specialization (4)--or less. (5) And administrative tribunals are either "patent death squads" (6) or the only bulwark left against innovation-choking trolls (7).

The patent landscape has changed radically in the past decade, particularly in terms of decision-makers. The Leahy-Smith America Invents Act ("AIA") (8) expanded the U.S. Patent and Trademark Office's authority as an administrative tribunal and greatly increased third-party participation in the patent grant (and post-grant) process. (9) The Patent Cases Pilot Program now funnels many patent cases to judges with enhanced patent training and experience, on top of a litigant-driven concentration among a handful of districts and a growing demand for juries. (10) Meanwhile, more than half of the seats on the Court of Appeals for the Federal Circuit--the sole appellate tribunal of right for these matters--have changed hands. (11)

Recent empirical studies of patent litigation have offered considerable insight into, for example, the significance of different areas of patented technology (12) or particular district courts (13) on case outcomes. But few have shed light on the differences between classes of adjudicators: administrative patent judges on the Patent Trial and Appeal Board ("PTAB"), district court judges of various stripes, and juries. (14) And no studies offer a comprehensive picture of the natural experiment currently unfolding. That is, comparable patent validity issues are decided separately by judges, juries, and administrators, but all of their decision-making is reviewed in turn by a singular, controlling entity: the Federal Circuit. Accordingly, examining and comparing the results of appeals to the Federal Circuit from each of these adjudicators offers a particularly clear window into the relationships between these entities--and into the varying effects of expertise and specialization in the patent world overall.

This Article capitalizes on the current adjudicatory structure of patent law, analyzing more than two thousand Federal Circuit cases and opinions--each hand-coded for validity findings and their disposition on appeal issue-by-issue. Though an incredibly time-intensive approach, (15) the result is a uniquely complete and clear dataset. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Experts, Generalists, Laypeople, and the Federal Circuit
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.