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Friday, February 10, 2017

The Federal Circuit and "Patent Exceptionalism": Part I

The U.S. Court of Appeals for the Federal Circuit, the appellate court with exclusive jurisdiction over patent cases, is often criticized for treating such cases as “exceptional.”  Over the past decade or so, the U.S. Supreme Court has issued a number of opinions, which, as Peter Lee recently wrote, “reflect a project of eliminating ‘patent exceptionalism’ and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles).”  This is the first in a series of posts that will discuss the Federal Circuit and exceptionalism. 

One fundamental way in which the Federal Circuit treats patent cases as exceptional relates to a choice of law question that arises frequently in patent litigation.  When Congress created the Federal Circuit in 1982, it clearly intended for Federal Circuit law to govern substantive issues of patent law like infringement and obviousness.  What Congress failed to consider, however, was whether procedural questions in patent cases should be controlled by Federal Circuit or regional circuit law.  The Federal Circuit was forced to decide this question soon after its creation, and held that regional circuit law generally applies unless the procedural question is “unique to patent issues” or “intimately involved with the substance of patent laws,” in which case Federal Circuit law applies.  Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564 (Fed. Cir. 1984).  Since Panduit, the Federal Circuit has articulated this choice-of-law test inconsistently, creating confusion and difficulty for litigants and lower courts. 

Although scholars have discussed this issue over the years and proposed various solutions (see, e.g., here, here, and here), neither the Supreme Court nor Congress has weighed in on this question.  There’s a good argument that specialized courts like the Federal Circuit would benefit from a generalist perspective, so perhaps the Federal Circuit should apply regional circuit law on all procedural matters.  The problem with that approach is that often procedural questions arise that are unique to patent cases, so there is no regional circuit law for the Federal Circuit to apply.  On the flip side, the position that the Federal Circuit should simply apply its own law to all procedural questions like other Article III appellate courts is also persuasive.  What’s clear to me is that the current framework—which leaves parties guessing at what procedural matters are “unique to” or “intimately involved with” patent law—is flawed and should be fixed. 

Posted by Megan La Belle on February 10, 2017 at 12:12 PM | Permalink

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