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United States Court of Appeals for the Federal Circuit

The US Court of Appeals for the Federal Circuit (CAFC), commonly referred to as simply Federal Circuit (Fed. Cir.), is a federal patent court in the United States that hears appeals from District Courts and the Patent Trial and Appeal Board. It replaced the Court of Customs and Patent Appeals in 1982.

The Federal Circuit is known for its strong pro-patent bias. Since its creation, the Federal Circuit has massively expanded the scope for patenting business methods and software. Its massive impact on the patent system has only been counterbalanced by the US Supreme Court, in particular with Bilski and Alice.

Powers

The Federal Circuit hears patent cases from the lower District Courts. The court usually gives "panel decisions" which are written by a panel of three judges. The court can also take a case en banc, which means all active judges of the court participate in writing the opinion (or opinions). The purpose of en banc cases is to set firmer case law on a particular issue.

Until September 16, 2012, the Federal Circuit could hear cases from the Board of Patent Appeals and Interferences (BPAI). After the America Invents Act, the Federal Circuit can also hear cases from the Patent Trial and Appeal Board (PTAB), which replaced the BPAI.

Appeals

Appeals to the court's decisions lie to the US Supreme Court.

Pro-patent bias

Before 1982, appeals of patent cases—like all other federal court cases—were heard in one of the twelve circuit courts of appeal, with each circuit corresponding to a geographic region. These distinct circuit courts often interpreted patent law very differently (a phenomenon known as circuit split). Conflicting interpretations in different circuits are common to this day; it's one of the main criteria that the US Supreme Court uses when deciding whether to hear particular cases (known as certiorari). However, in the case of patent law, important differences persisted because the Supreme Court rarely heard patent-related cases. Because of the unresolved mess, patent attorneys competed to have the cases heard in a circuit that favored their position (also known as forum shopping).[1]:98–100

A patent court, the Court of Customs and Patent Appeals (CCPA) already existed since 1909, but it could only hear cases from the USPTO, whereas circuits had jurisdiction over actual patent lawsuits.[2] In 1982, The US Congress enacted the Federal Courts Improvement Act and replaced the CCPA with the Federal Circuit as a centralized appellate court for patent cases. During discussions of the bill, the House had suggested that the judges should come from diverse backgrounds. A court comprised of judges with a strong patent background, it was warned, risked suffering from "tunnel vision"; upholding patents without taking into account their wider consequences in society. This concern was exactly what blocked the creation of a specialized patent court for decades.[1]:100–2 In 1951, Simon Rifkind, then district judge, had repeatedly spoken out about this danger:[3]

The patent law does not live in the seclusion and silence of a Trappist monastery. [...] Once you segregate the patent law from the natural environment in which it now has its being, you contract the area of its exposure to the self-correcting forces of the law. In time, such a body of law, secluded from the rest, develops a jargon of its own, thought-patterns that are unique, internal policies [...] which are different from and sometimes at odds with the policies pursued by the general law.

Nonetheless, the Federal Circuit became exactly that: a patent court full of pro-patent judges. As economists Adam Jaffe and Josh Lerner note:[1]:100–2

Despite these concerns, many of the new judges on the twelve-member CAFC had extensive experience with the patent system. Five of the initial judges were drawn from the Court of Customs and Patents Appeals, a specialized body that had heard appeals of disputes between patent applicants and the PTO (but not between private parties). The new court’s chief judge, Howard T. Markey, was a patent lawyer who had previously chaired the old court. Judge Giles Rich, who until his death at age 95 in 1999 was an active member of the court, had been on the two-man committee that drafted the Patent Act of 1952 and was widely seen as the "dean of modern patent law." Judges added in subsequent years—including Pauline Newman and Alan Lourie—had extensive experience with patent issues. Whether a consequence of their training and work experience or not, many of these judges proved to have a pro-patent outlook. Even when they were mixed with non-specialists, often the patent-savvy judges were asked—or volunteered—to take the lead in shaping and writing the decisions in patent cases.

The impact of the Federal Circuit's decisions has been enormous. Whereas the circuit courts had upheld 62% of district-court findings of patent infringement in three decades, the Federal Circuit affirmed 90% of such decisions within eight years of its existence. Where the district court had found that patent was invalid, the circuits had reversed only 12% of the cases. The Federal Circuit reversed 28% in its first eight years.[1]:104–5 In addition, it broadened patent rights in the following ways:

Nowadays, patent attorneys who defend the Federal Circuit say that it "has balanced its pro-patent jurisprudence with what many would regard as anti-patent holdings".[4] Whether this is true or not is irrelevant; it has already damaged the software industry with decisions that enabled business methods and software patents, and their effects last to this day.

Some former judges of the Federal Circuit are part of the Council for Innovation Promotion (C4IP), a pro-patent lobbying organization that advocated for PERA.

Other criticisms

Judicial hyperactivity

Some commentators have accused the Federal Circuit of "judicial hyperactivity". According to scholars William Rooklidge and Matthew Weil who coined the term, judicial hyperactivity describes the court's tendency to "tak[e] up roles normally assigned to patent examiners, to advocates and to judicial fact-finders".[5] This is a grave accusation as it implies that there is a wider issue of separation of powers in the US patent system. An empirical study in 2012 found that the Federal Circuit is significantly more judicially hyperactive than other circuits.[6]

Summary affirmance habit

The court has been critiqued for its frequent use of "Rule 36 summary affirmance" as a way to avoid resolving important legal questions. A Rule 36 affirmance is a standard one-page order that affirms on the basis of the judgment below, to clear its docket faster.[7][8]

Notable people

Judge Giles Sutherland Rich had enormous impact on US patent law. He was the main author of In re Alappat (1994, USA) (expanding patent eligibility to software) and State Street v. Signature Financial Group (1999, USA) (expanding patent eligibility to business methods).

Notable cases

Related pages on ESP Wiki

References

  1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 Jaffe Adam B. & Lerner Josh, "The Silent Revolution" in Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What to Do About It[library] (ed. Dougherty Peter), Princeton University Press, 2007.
  2. ↑ Lee Timothy B., How a rogue appeals court wrecked the patent system[archived], arstechnica.com, 2012-09-30.
  3. ↑ Rifkin Simon, A Specialized Court for Patent Litigation? The Danger of a Specialized Judiciary, American Bar Association Journal, Vol. 37, No. 6, 1951, p. 425.
  4. ↑ Dunner Donald R., The U.S. Court of Appeals for the Federal Circuit: Its Critical Role in the Revitalization of U.S. Patent Jurisprudence, Past, Present, and Future[PDF], Loyola of Los Angeles Law Review, Vol. 43, No. 3, 2010-03-01.
  5. ↑ Rooklidge William C. & Weil Matthew F., Judicial Hyperactivity: The Federal Circuit's Discomfort with its Appellate Role, Berkeley Technology Law Journal, Vol. 15, No. 2, 2000, pp. 725–52.
  6. ↑ Field Ted L., "Judicial Hyperactivity" in the Federal Circuit: An Empirical Study[PDF], University of San Francisco Law Review, Vol. 46, No. 3, 2010, p. 742.
  7. ↑ Hoffman Andrew, The Federal Circuit's Summary Affirmance Habit[PDF], BYU Law Review, Vol. 2018, No. 2, 2018-09-30.
  8. ↑ Quinn Gene, Rule 36 Judgment: The growing problem of one word affrimance by the Federal Circuit[archived], ipwatchdog.com, 2016-08-22.

External links

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