The Constitution of Patent Law: The Court of Customs and Patent Appeals and the Shape of the Federal Circuit’s Jurisprudence

Abstract

Recent critiques of the Court of Appeals for the Federal Circuit have focused on the court’s reluctance to embrace cohesive policy approaches in its patent jurisprudence, particularly when it comes to questions of patent scope. This Article suggests that the Federal Circuit’s tendency towards more formalistic decision-making derives in part from the jurisprudential heritage of one of its predecessor courts, the Court of Customs and Patent Appeals. The modern doctrines of patent scope were shaped by the CCPA’s decisions in the years following the 1952 Patent Act, especially its decisions interpreting §§ 103 and 112 of the Act. When the Federal Circuit adopted the CCPA’s precedent in its first decision, the CCPA’s law displaced that of other courts previously charged with administering aspects of the patent system. But the CCPA’s patent decisions were uniquely shaped by three imperatives peculiar to the court and its place in the patent system: the nature of the court itself; its need to exert and legitimize its control over Patent Office decisions; and its exclusive focus on patentability rather than patent enforcement. Though the modern Federal Circuit has far different jurisprudential needs than did the CCPA, the CCPA’s legal methodologies are so deeply engrained in patent law that they continue to shape Federal Circuit decision-making today. Those doctrines and methodologies may have served the CCPA well; but they may not answer the needs of the modern patent system.

Keywords: patent law, Court of Appeals for the Federal Circuit, Court of Customs and Patent Appeals