Wednesday, June 11, 2008

Timothy Lee blasts Federal Circuit

In a post at TechDirt, Timothy Lee blasts the Court of Appeals for the Federal Circuit, and advocates a return to the prior regionalization of patent jurisdiction. As is usually the case, it's what was NOT mentioned that one should worry about. For example, "why" we went AWAY from regionalization in the FIRST place. Anyway, Lee wrote:

The lesson here is that the creation of the Federal Circuit in the early 1980s was a mistake. Before Congress created the court to handle patent cases, patent appeals were handled by the same courts that handled other kinds of appeals. There tends to be a lot more diversity on the normal circuit courts, which helps the judges on the courts to have a better sense of perspective and not see every case as an opportunity to expand patenting. Perhaps more importantly, the competition among circuits made the Supreme Court's job a lot easier. If one circuit wandered off the reservation, other circuits would typically hand down decisions more consistent with Supreme Court precedent, producing what the lawyers call a "circuit split." That would serve as a signal that the Supreme Court needed to step in, and it allowed the high court to simply give its blessing to the circuit whose rulings were closer to the Supreme Court's own thinking. In contrast, the current setup forces the Supreme Court to do a lot of the heavy lifting itself, repeatedly reviewing and overruling Federal Circuit decisions in an effort to establish a better set of precedents. Congress should give the Supreme Court a hand by eliminating the Federal Circuit and restoring jurisdiction over patent appeals to the other circuits. The judges currently on the Federal Circuit should probably be re-assigned to the other circuits, where they can provide helpful advice on the nuances of patent law to their colleagues but won't have enough votes to continue indiscriminately expanding patent law.

The trigger here was the recent Supreme Court decision on exhaustion in the LG case. Previously, we had KSR, which was more political in nature than legal (KSR was the first non-precedential case ever reviewed by the Supreme Court). There was also Microsoft v. AT&T, and MedImmune (on declaratory judgment jurisdiction).

Among other posts, see

In passing, LBE had to go through the circuit split revolving door in order to do a law review article, because the law review at the University of Chicago ONLY would consider topics involving splits. That, of course, removed patents as a topic for a law review. LBE finally got a trademark topic (color trademarks), and his article for law review (published by TMR) was cited by the US Supreme Court in Qualitex. Anybody who thinks the selection by circuit split is a more efficient process than selection by topic is sadly mistaken. In the color trademark business, the illustrious 7th and 9th circuits were on the losing end, and the 8th circuit and the federal circuit on the winning end, but how many years of uncertainty went by?


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