Pluralism on Appeal

In a thoughtful response to my article, Rethinking Federal Circuit Jurisdiction, Ori Aronson notes that judges “work in context, be it social, cultural, or...institutional,” and that “context matters” to their decisions. Indeed, the primary aim of my article was to spur a conversation about the context in which the judges of the Federal Circuit — who have near plenary control over U.S. patent law — decide cases. That context includes many matters in narrow areas of law that bear little relation to the innovation and economic concerns that should animate patent law. To inject those concerns into the court’s province, my article introduced the concept of limited specialization, under which the Federal Circuit would retain exclusive jurisdiction over patent cases (and possibly a few other areas) while also being granted nonexclusive jurisdiction over a variety of cases that are normally appealed to the regional circuits. In a similarly insightful response to my article, Cecil Quillen is doubtful that limited specialization would fix what he calls “the Federal Circuit problem.” Instead, he prefers the model of “polycentric decision making” embraced by, most notably, Professors Craig Nard and John Duffy in their important and provocative article, Rethinking Patent Law’s Uniformity Principle. Under that model, multiple appellate courts would decide patent cases, permitting inter-court dialogue and enhancing the possibility for self-correction when one court makes a mistake. Those interested in rethinking Federal Circuit jurisdiction do not face a binary choice between polycentrism and limited specialization. Rather, there are countless ways in which the court’s jurisdiction could be altered to achieve various normative goals. For example, Congress recently expanded Federal Circuit jurisdiction to include cases where the patent issue arises only in a counterclaim. To further the goals of enhancing legal uniformity and deterring forum shopping, the statutory revision overruled a decade-old Supreme Court decision that directed cases involving patent law counterclaims to the regional circuits. Also, Congress has recently considered removing the Federal Circuit’s jurisdiction over veterans cases, with some arguing that this reform would speed up the protracted benefits process. To evaluate these and other possible proposals for jurisdictional reform, we need a sustained conversation about how institutional structure may impact substantive outcomes. I therefore begin this Reply by emphasizing how my article advances that discussion by incorporating the Federal Circuit’s nonpatent docket into the institutional analysis. By considering nonpatent cases, my project frames “the Federal Circuit problem” in a new and, I believe, more comprehensive way than it has been framed by Mr. Quillen and others. I then consider an observation made by Professor Aronson in his response, which captures the intuition supporting limited specialization: that generalists — those who have a broad background in a variety of fields — might be the best specialists. This insight, I contend, highlights how many proposals to reform patent law’s appellate structure share a common belief that pluralism is good. However, it also illuminates two difficult questions we must continue to explore. First, what kind of pluralism is better, a plurality of decision-making bodies or a plurality of jurisdictional areas? And second, how much pluralism do we need

Elite Patent Law

Over the last twenty years, one of the most significant developments in intellectual property law has been the dramatic increase in the number of patent cases decided by the U.S. Supreme Court. That same time period has also seen the emergence of a small, elite group of lawyers specializing not in any particular area of substantive law but in litigation before the Supreme Court. In recent empirical work, I linked the Court’s growing interest in patent law to the more frequent participation of elite Supreme Court lawyers in patent cases, particularly at the cert. stage. Among other things, I found that the proportion of cert. petitions in patent cases filed by elite lawyers has increased more than fivefold since the early 2000s and that, in patent cases, a cert. petition filed by an elite lawyer is 3.3 times more likely to be granted than a petition filed by a non-elite. This article, written for a symposium on Administering Patent Law, builds on that prior work in two ways. First, it shows that elite Supreme Court lawyers are not only handling more patent cases at the Court itself, they are arguing a growing number of patent cases at the Federal Circuit, too. As recently as 2009, fewer than 1 in 100 Federal Circuit oral arguments were delivered by an elite Supreme Court advocate. Today, that figure is 1 in 20. In a similar vein, from 2008 through 2010, less than 10% of all elite Supreme Court advocates also presented oral argument at the Federal Circuit in a given year. Today, that figure has tripled, with one-quarter of elite Supreme Court advocates also delivering at least one argument at the Federal Circuit annually.Second, this article considers the normative implications of having a small, relatively homogeneous group of lawyers play such a significant role in shaping patent law in the United States. The presence of elite advocates—who know well enough to deemphasize the technological aspects of patent cases when litigating before the Justices—could help explain why the Supreme Court has generally shied away from disputes involving the core requirements of patentability, such as nonobviousness, even though doctrinal disruption in those areas would be particularly useful. Ultimately, however, elite advocates’ involvement in patent cases may be beneficial: as non-specialists in patent law, they can help alleviate problems that have arisen due to the centralization of patent appeals in the semi-specialized Federal Circuit

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

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

Quick Decisions in Patent Cases

Patent litigation is notoriously expensive and time consuming. In the past decade, however, patent law has changed in many ways that expedite resolution of infringement disputes. This article identifies and evaluates this trend toward quick decisions in patent cases. Balancing the savings in litigation costs against the potential for error, the article defends many recent and controversial developments, including the Supreme Court’s invigoration of the patent eligible subject matter requirement, the new administrative proceedings created by the America Invents Act, and changes in the requirements for pleading patent infringement. These developments permit defendants to obtain rulings of invalidity or noninfringement before discovery begins, which was previously impossible. Pre-discovery rulings cost relatively little and can discourage nuisance litigation. But resolving complex questions of validity or infringement on a thin factual record increases the risk of error, so the article suggests additional reforms to help ensure that quick decisions are also accurate decisions

Early Filing and Functional Claiming

A major problem in the patent system is that many patents claim far more than the patentee actually invented. In his perceptive article, Ready for Patenting, Mark Lemley argues that this overclaiming is caused in part by legal doctrines that encourage inventors to file a patent application as early as possible, often before — or even instead of — building their invention. Patents issued from early-filed applications, Lemley argues, tend to be overly broad because the applicant does not yet know how the invention actually works. This response essay, part of the Boston University Law Review’s symposium on Notice Failure in Intellectual Property Law, engages Lemley’s article in two ways. First, although it agrees that patent law should, in general, offer more protection to patentees who build their inventions than it offers to mere “paper patentees,” it emphasizes that protecting builders can be costly. Doctrines that encourage inventors to build their inventions before they file a patent application, such as the experimental use doctrine, are fact-intensive to apply and can encourage expensive litigation. By contrast, doctrines that reduce the importance of building the invention, such as the new first-to-file priority rule, are easy and cheap to apply. Although the social costs of overbroad patents that result from early filing might outweigh the expense of occasional, complicated fights over novelty and priority, Lemley’s argument against early filing would be stronger if it engaged the tradeoff between clear rules and fuzzy standards in this area. Second, the essay builds on Lemley’s argument that functional claiming is a key source of overly broad patent protection by analyzing the effects of the Federal Circuit’s 2015 en banc decision in Williamson v. Citrix Online, LLC, which gave courts new discretion to constrain the scope of patents drafted in functional terms. Recent district court decisions make clear that Williamson provides a ground to narrow or even to invalidate particularly broad, functional patent claims. But the decisions also provide a roadmap for future patent applicants to draft around Williamson’s limits on claim scope. Accordingly, other doctrines, such as the requirement of patent eligibility under § 101 of the Patent Act, will continue to be important to combating overclaiming in patent law

Rising Confusion About \u27Arising Under\u27 Jurisdiction in Patent Cases

By statute, all cases “arising under” patent law must be heard exclusively by the federal courts (not state courts) and, on appeal, by the Federal Circuit (not the twelve regional circuits). But not all cases involving patents “arise under” patent law. As recently as 2013, the Supreme Court ruled that the mere need to apply patent law in, for example, a malpractice case involving a patent lawyer, is insufficient to trigger exclusive jurisdiction. Rather, the Court held, for a case that does not involve claims of patent infringement to arise under patent law, the patent issue must be “important . . . to the federal system as a whole.”Despite the Supreme Court’s holding that “fact-bound and situation-specific” patent issues do not warrant exclusive jurisdiction outside of infringement cases, the lower courts’ precedent in this area remains unsettled. The Federal Circuit has, at times, tried to resurrect its older case law extending exclusive jurisdiction to practically any patent-related tort, contract, or antitrust case. But, in other decisions, the Federal Circuit has constricted jurisdiction so dramatically that the Fifth Circuit recently refused to accept a case transferred to it by the Federal Circuit, deriding the Federal Circuit’s jurisdictional ruling as not just wrong but “implausible.” All of this uncertainty incentivizes costly and wasteful procedural maneuvering in a field where litigation is already expensive.This Article is the first to chronicle the rising confusion about the scope of the federal district courts’ and the Federal Circuit’s exclusive jurisdiction over cases arising under patent law. The Article critiques the case law emerging in the lower federal courts and proposes a jurisdictional rule that is both clear and consistent with Supreme Court precedent: For a case that does not involve claims of patent infringement to nevertheless arise under patent law, it must present a dispute about the content of federal patent law or a question about the interpretation or validity of the federal patent statute; questions about the validity or scope of a particular patent are not sufficient.In arguing for this new approach, the Article also engages broader questions about the jurisdictional structure of patent litigation. Among other things, it suggests that the courts or Congress should rethink longstanding doctrine that makes the test for Federal Circuit appellate jurisdiction identical to the test for exclusive original jurisdiction in the district courts. Exclusive district court jurisdiction entirely precludes state courts from shaping their own state’s law, so federal courts should be hesitant to exercise jurisdiction over a tort or contract claim simply because there is a patent lurking in the background. But when a patent-related case is properly in federal district court, the Federal Circuit’s expertise in patent law and ability to provide uniformity counsel in favor of giving the court a broad scope of appellate jurisdiction

(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 Federal Circuit as a Federal Court

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

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