The Battle of the Bands: The Chiefs Sing About the Future of the Federal Circuit

The Battle of the Bands: The Chiefs Sing About the Future of the Federal Circuit

 by Dov Greenbaum

Chief Judges Rader of the Federal Circuit & Wood of the Seventh Circuit took different approaches to sing about the Federal Circuit. Rader contrasted the growth of the PTAB administrative judge corps with the relatively stagnant numbers of judges on his court & argued a need to keep a tight rein on uniformity in the CAFC. Wood suggested that the Federal Circuit -- particularly its exclusive jurisdiction on patent cases -- needs an overhaul.

Excerpt:

Recently Chief Judges Rader of the Federal Circuit and Wood of the Seventh Circuit took to different stages at different law schools to sing about the Federal Circuit.

Rader, known for his musical talent, and with a more classic rock lineup, contrasted the impressive growth of the Patent Trial and Appeal Board (PTAB) administrative judge corps with the relatively stagnant numbers of judges on his court, arguing, perhaps consciousness of a need to keep a tight rein on uniformity within the United States Court of Appeals for the Federal Circuit (CAFC), that more staff attorneys would be better than more new judges on his bench.

Wood, with a mostly contemporary pop line-up suggested that the Federal Circuit as it stands, particularly its exclusive jurisdiction on patent cases, needs an overhaul.

In the recurrent cycle of questioning the efficacy of the Federal Circuit, which has created a not inconsequential body of research, this current recapitulation particularly stands out: Not only because of the recent upheaval in patent law, but possibly because a respected and influential jurist, not just an academic, is raising the question.

History of the Federal Circuit

The Federal Courts Improvement Act of 1982 that created the Federal Circuit was signed into law by Ronald Reagan. The Court, which began as a merger of two now defunct Article III courts, the United States Court of Claims and the United States Court of Customs and Patent Appeals, wasn't created de novo, but rather after a long gestation that included a number of commissions that suggested the need for changes in the regional circuit system.

Ostensibly to promote a greater uniformity in certain areas of federal law, and in light of economic conditions at the time, the final iteration of the Federal Circuit was granted exclusive jurisdiction particularly in the area of patents and a handful of other areas of the law.

This 'area of patents' codified in 28 USC § 1295, included, among other things, all appeals

...from a final decision of a district court of the United States, ... in any civil action arising under, or in any civil action in which a party has asserted a compulsory counterclaim arising under, any Act of Congress relating to patents or plant variety protection."

Notably, in its first opinion, the court, sitting en banc reiterated the centrality of this uniformity policy:

As a court of nationwide geographic jurisdiction, created and chartered with the hope and intent that stability and uniformity would be achieved in all fields of law within its substantive jurisdiction, we begin by adopting as a basic foundation the jurisprudence of the two national courts which served not only as our predecessors, but as outstanding contributors to the administration of justice for a combined total of 199 years, the Court of Claims and the Court of Customs and Patent Appeals. (emphasis added) [footnotes omitted]

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Dov Greenbaum is an intellectual property attorney at Pearl Cohen Zedek Latzer Baratz. He has extensive experience in litigating and drafting patents in varied fields including hardware, software, biotech and medical devices. Dov is also an Assistant Professor in the Department of Molecular Biophysics and Biochemistry at Yale University. Dov completed postdoctoral fellowships at Stanford University and Eidgenossische Technische Hochschule Zurich (ETH Zurich), where he focused on issues related to science and law. In addition to his many legal and scientific papers he has also written non-technical pieces relating to science in society. Dov has his law degree from the University of California, Berkeley, and a PhD in Genetics with a focus in Bioinformatics from Yale University.