Veterans Benefits in 2010: A New Dialogue Between the Supreme Court and the Federal Circuit

The Supreme Court of the United States rarely grants certiorari in a veterans benefits case. Congress gave the United States Court of Appeals for the Federal Circuit exclusive jurisdiction over veterans appeals in 1988 but, until 2009, the Supreme Court had reviewed only two Federal Circuit veterans decisions. In the 2010 Term, however, the Court decided its second veterans case in less than two years. Although patent lawyers are familiar with a trend of increasing Supreme Court interest in the Federal Circuit’s work, little attention has been paid to the similar, albeit incipient, trend that may be emerging in the field of veterans law. In this Article, I explore whether the recent increase in Supreme Court veterans cases indicates a new, genuine interest in veterans law or is simply an aberration. Although I conclude that it is too early to tell whether a clear trend is developing, the factors that have potentially contributed to the Court granting certiorari in two cases in three Terms have the potential to fuel a larger veterans docket for the Supreme Court in the future. Most notably, veterans in recent years have increasingly been represented by attorneys with substantial experience in both the Supreme Court and the Federal Circuit, thanks to newly created pro bono programs for veterans who have meritorious claims but no legal counsel

Veterans Benefits in 2010: A New Dialogue Between the Supreme Court and the Federal Circuit

The Supreme Court rarely grants certiorari in a veterans benefits case. Congress gave the Federal Circuit exclusive jurisdiction over veterans appeals in 1988 but, until 2009, the Supreme Court had reviewed only two Federal Circuit veterans decisions. In the 2010 Term, however, the Court decided its second veterans case in less than two years. Although patent lawyers are familiar with a trend of increasing Supreme Court interest in the Federal Circuit’s work, little attention has been paid to the similar, albeit incipient, trend that may be emerging in the field of veterans law. In this contribution to the annual Federal Circuit issue of the American University Law Review, I explore whether the recent increase in Supreme Court veterans cases indicates a new, genuine interest in veterans law or is simply an aberration. Although I conclude that it is too early to tell whether a clear trend is developing, the factors that have potentially contributed to the Court granting certiorari in two cases in three Terms have the potential to fuel a larger veterans docket for the Supreme Court in the future. Most notably, veterans in recent years have increasingly been represented by attorneys with substantial experience in both the Supreme Court and the Federal Circuit, thanks to newly created pro bono programs for veterans who have meritorious claims but no legal counsel. In addition to exploring the Supreme Court’s encounters with veterans law, this article, as is customary in this issue, summarizes significant developments in veterans benefits law in 2010, focusing mainly on the decisions of the Federal Circuit. I also briefly consider important veterans legislation passed by Congress and administrative regulations issued by the Department of Veterans Affairs

The New Federal Circuit Mandamus

This Article explores an ongoing revolution in the mandamus jurisprudence of the U.S. Court of Appeals for the Federal Circuit, the court of appeals with nearly exclusive jurisdiction over patent cases. Before December 2008, the Federal Circuit had never used the interlocutory writ of mandamus to order a district court to transfer a case to a more convenient forum, denying each one of the twenty-two petitions it had decided on that issue. Since that time, however, the court has overturned eleven different venue decisions on mandamus. Remarkably, ten of those eleven cases have come from the same district court, the U.S. District Court for the Eastern District of Texas. This use of mandamus to repeatedly overturn discretionary, non-appealable rulings of one district court is unprecedented in any federal court of appeals. What makes the Federal Circuit’s cases particularly notable is that the court, not long ago, would grant mandamus only on issues governed by Federal Circuit patent law. Because transfer of venue is a non-patent issue controlled by regional circuit law, the recent cases plainly would not warrant mandamus under the court’s prior, narrower standard. The court’s focus on the Eastern District of Texas is also interesting because of the popular view that the Eastern District is biased in favor of patent holders and denies transfer motions with impunity. This is the first article to analyze the Federal Circuit’s retreat from its original, restrained view of mandamus. It begins by considering why the Federal Circuit initially believed it could grant mandamus on patent issues only, a question previously ignored by the literature. The Article then explores why, in its recent cases, the court has abandoned the view that Federal Circuit mandamus should be limited to issues of patent law. Surprisingly, the Federal Circuit has never explained its reasoning. The Article fills this analytical void and develops a doctrinal, theoretical, and pragmatic rationale for Federal Circuit mandamus on non-patent issues. The Article also offers possible explanations for the Federal Circuit’s fixation on the Eastern District of Texas and proposes a new analytical framework for Federal Circuit mandamus — a framework that might emerge if the court were to critically examine its mandamus power

(In)valid Patents

Increasingly, accused infringers challenge a patent’s validity in two different forums: in litigation in federal court and in post-issuance review at the Patent and Trademark Office (PTO). These parallel proceedings have produced conflicting and controversial results. For example, in one recent case, a district court rejected a challenge to a patent’s validity and awarded millions of dollars in damages for infringement. The Federal Circuit initially affirmed those rulings, ending the litigation over the patent’s validity. In a subsequent appeal about royalties owed by the infringer, however, the Federal Circuit vacated the entire judgment—including the validity ruling and damages award it had previously affirmed—because the PTO had since decided that the patent was invalid. The Federal Circuit reasoned that only “final” court judgments are immune from the effects of PTO review and, because of the open issue about royalties, no final judgment existed when the PTO rendered its conflicting decision on patent validity. The Federal Circuit’s stringent conception of finality, which this Article terms the “absolute finality rule,” raises serious questions of judicial economy, fairness, and separation of powers. Among other things, it allows accused infringers multiple opportunities to defeat liability, permits an administrative agency to effectively nullify decisions of Article III courts, and incentivizes courts to abstain from hearing patent cases altogether, at least until the PTO reconsiders the patent’s validity. That said, some inefficiency or unfairness is inevitable when two different government bodies can evaluate the validity of the same patent, and the absolute finality rule, if nothing else, provides a relatively bright-line test. But it is not the only way to mediate disagreements between the courts and the PTO. This Article, in addition to identifying, describing, and critiquing the absolute finality rule, explores several other options for providing greater certainty about patent validity

The Supreme Court Bar at the Bar of Patents

Over the past two decades, a few dozen lawyers have come to dominate practice before the U.S. Supreme Court. By many accounts, these elite lawyers—whose clients are often among the largest corporations in the world—have spurred the Court to hear more cases that businesses care about and to decide those cases in favor of their clients. The Supreme Court’s recent caselaw on antitrust, arbitration, punitive damages, class actions, and more provides copious examples. Though it is often overlooked in discussions of the emergent Supreme Court bar, patent law is another area in which the Court’s agenda has changed significantly in the past twenty years. After rarely hearing patent cases for several decades, the Court now decides three or more patent cases nearly every Term. This Article presents an empirical analysis linking the Supreme Court’s increasing interest in patent law to the elite bar’s growing involvement in patent litigation. Though correlation does not prove causation, the Article relies on a novel dataset of cert petitions in Federal Circuit patent cases to suggest that the elite bar has, in fact, contributed to the growth of the Supreme Court’s patent docket. Among this Article’s key findings is that, in patent cases, a cert petition filed by an elite lawyer is three times more likely to be granted than a petition filed by a lawyer outside that group. And although elite lawyers account for only 16% of cert petitions filed in patent cases, their petitions account for a remarkable 40% of the petitions granted. Because patent appeals are centralized in the Federal Circuit, patent law lacks the circuit splits that the law clerks who sift through cert petitions would normally look for in recommending that the Court grant review. But the presence of elite lawyers may not be an ideal proxy for certworthiness. In fact, the increasing participation of those lawyers in patent litigation could help explain why the Court’s recent patent cases, though substantial in number, mainly involve issues of jurisdiction, procedure, and statutory interpretation—not the core areas of patent law where the Court’s input would be most useful

Rethinking Federal Circuit Jurisdiction

Thirty years ago, Congress created the Federal Circuit for the overriding purpose of bringing uniformity to patent law. Yet less than half of the court’s cases are patent cases. Most Federal Circuit cases involve veterans benefits, government-employment actions, government contracts, and other matters. Although existing literature purports to study the Federal Circuit as an institution, these projects focus largely on the court’s patent cases. This Article, by contrast, considers whether the court’s nonpatent docket might affect the development of patent law and whether the court’s specialization in patent law has consequences for how it decides nonpatent cases. These inquiries result in two primary contributions. First, drawing on institutional-choice theory, this Article suggests that certain litigants — particularly military veterans but also government employees and government contractors — should not be forced to litigate appeals in a specialized court in Washington, D.C. Second, the Article offers a structural remedy that might help cure a frequently discussed problem with Federal Circuit patent law: that it is not sufficiently sensitive to innovation policy. By replacing some of the court’s current nonpatent docket with a variety of commercial disputes (over which the Federal Circuit would not have exclusive jurisdiction), the court might better understand the role that patents play in stimulating (or impeding) innovation in different industries

Can a Court Change the Law by Saying Nothing?

Can an appellate court alter substantive law without writing an opinion? We attempt to answer that question by conducting a novel empirical investigation into how the Federal Circuit has implemented the Supreme Court\u27s 2014 ruling in Alice v. CLS Bank, the most recent in a series of Supreme Court decisions strengthening patent law\u27s patentable subject matter requirement. Our dataset includes each one of the Federal Circuit\u27s more than 100 decisions on patentable subject matter in the three years since Alice, including affirmances issued without an opinion under Federal Circuit Rule 36. Including those no-opinion affirmances, the Federal Circuit has found the patent to be invalid in more than 90% of its decisions. The court\u27s precedential opinions, however, tell a different story: nearly a quarter of them favor the patentee by rejecting challenges to patent validity. This difference is due largely to one remarkable fact: although the court has issued over fifty Rule 36 affirmances finding the asserted patent to be invalid, it has not issued a single Rule 36 affirmance when finding in favor of a patentee. Rather, it has written an opinion in every one of those cases. As a result, the Federal Circuit\u27s precedential opinions provide an inaccurate picture of how disputes over patentable subject matter are actually resolved. Precedential opinions suggest that any given patent has a decent chance of surviving an eligibility challenge at the Federal Circuit. But, in reality, very few patents do. Our findings suggest that, by saying nothing, a court can indeed affect substantive law, or at least the perception of it. This has interesting implications both for the ongoing debate over the legality of Rule 36 and, more broadly, for understanding the differences between the law on the books and the actual experience of litigant

The Patently Unexceptional Venue Statute

Legal doctrines developed by the U.S. Court of Appeals for the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure. The court’s interpretation of the venue statute for patent infringement suits seems, at first glance, to fit that mold. According to the Federal Circuit, the statute places few constraints on the plaintiff’s choice of forum when suing corporate defendants. This permissive venue rule has lead critics to suggest that the court is, once again, outside the mainstream. The Supreme Court’s recent grant of certiorari in TC Heartland v. Kraft Foods would seem to indicate that those critics are correct. This article argues, however, that venue is one area of Federal Circuit procedural law that is not, in fact, exceptional. Rather, the court’s capacious understanding of venue is both consistent with broader trends in venue doctrine and with the text and purpose of the governing statutes. To be clear, as a matter of pure policy, granting plaintiffs unbridled discretion over choice of forum in patent litigation may be problematic. But there are better modes of reform than a questionable interpretation of the venue statute that could have unintended consequences both in patent cases and beyond. This article, drafted for the American University Law Review’s annual symposium on the Federal Circuit, explores the history of the relevant venue statutes, analyzes key judicial decisions, argues that the Federal Circuit’s current approach to venue is doctrinally sound, and suggests alternative paths for reforming the law of forum selection in patent litigation

Overqualified and Underrepresented: Gender Inequality in Pharmaceutical Patent Law

Pharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings for consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation. But women lawyers are noticeably absent from pharmaceutical patent practice. This article reports an original empirical study finding that women comprise only one-third of the top pharmaceutical patent litigators and only one-quarter of lawyers who prosecute litigated pharmaceutical patents — numbers far below the share of women in the legal profession overall. The usual explanation for any lack of representation in patent practice is the “pipeline” problem — that is, an insufficient number of women in the technical fields underlying patent law. But our study finds little support for any pipeline problem. Indeed, recent studies indicate that more women law students have scientific undergraduate and graduate degrees than their male counterparts. Interestingly, the gender gap among pharmaceutical patent lawyers does not carry over to public sector work. The U.S. Patent and Trademark Office is the one place where our study finds anything close to parity: 42.3% of pharmaceutical patent examiners are women and 57.7% are men. This finding adds to a nascent literature documenting vast disparities in gender representation in the private versus public sectors, both in patent law and in law practice more generally. It also suggests that the lack of women doing patent law in private practice in the pharmaceutical field probably is not due to any pipeline problem; instead, it likely stems from structural inequalities that permeate the highest levels of corporate law firms. Those firms, as well as their pharmaceutical company clients, all say that diversity is important. But, as our study shows, there is a disconnect between rhetoric and reality. Fully solving structural inequality in law practice is a formidable task, but this article sketches a few ways in which firms and their clients could help create a patent bar that is more diverse and inclusive