Why The Supreme Court and Federal Circuit Are Vying To Control The U.S. Patent System

Robin Feldman, a professor at University of California Hasting Law School, has just published an interesting paper discussing recent U.S. Supreme Court cases almost uniformly rejecting the Federal Circuit’s view on many important patent law issues. The paper, “Coming of Age for the Federal Circuit,” [LINK] will be published in an upcoming issue of The GreenBag. In a recent interview, Feldman explained her thesis:

For decades, the Federal Circuit operated with little oversight from the Supreme Court. For example, in the first 15 years [after 1982], the Supreme Court decided a total of only five cases from the Federal Circuit. That's a remarkably small number compared to cases the Supreme Court took from other circuits. In addition, other circuits have the disciplining effect of different judges, different circuits coming to different opinions and conclusions. The Federal Circuit acted alone. 

In that time, it developed a habit of relying on rules of convenience. That is, they may have reached the right result for the particular case, but they lacked a coherent logical base. With little oversight from the Supreme Court, little dialog from other circuits, it was easy for the Federal Circuit to operate in that manner.

See “Why The SupremeCourt Keeps Smacking Down America's Top Patent Court” for the full interview.