With Great Power Comes Great Responsbility


Recently, a Seventh Circuit Judge penned an article over at Law360 setting forth her belief that the Federal Circuit should no longer have exclusive jurisdiction over patent appeals.  For those of you unfamiliar with our Federal court system, the way it works is that appeals for your federal district court are typically heard by an appellate court that covers all appeals for your particular geographic area.  Patent cases are unique in that all appeals are heard by the Federal Circuit Court of Appeals located in Washington, D.C.  While I can’t recall the exact reason, I believe it was originally based on the thought that it would be helpful to have  a court that developed a level of particular expertise in patent law.

I tend to agree with the author, Judge Diane Wood.  Change should happen.  I think there are a number of problems with the Federal Circuit’s exclusive jurisdiction.  First, if their goal was to generate a uniform body of case law that parties could rely on to accurately and meaningfully assess the risks of litigation, they’ve failed miserably.  For anyone that’s practiced in patent litigation, its almost comical how easy it is to find federal circuit case law on both sides of patent issues.  Second, the importance of patents in our society has almost led to the Federal Circuit having too much power.  While my evidence is anecdotal as opposed to analytical, it seems that patent litigation is now spawning the most expensive, high stakes litigation in the country.  When you start talking about cases worth billions of dollars, they are almost always patent cases.  I don’t think it was ever intended or expected that a single federal appeals court (with the exception of the Supreme Court who does not have to hear every appeal filed before them) would wield so much control.  I think the benefits of dispersing that power far outweigh the risks.

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