The Economics of a Centralized Judiciary: Uniformity, Forum Shopping and the Federal Circuit
University of Georgia
Alan C. Marco
United States Patent and Trademark Office - Office of Chief Economist
John L. Turner
University of Georgia - C. Herman and Mary Virginia Terry College of Business - Department of Economics
May 1, 2008
In 1982, the US Congress established the Court of Appeals for the Federal Circuit (CAFC) as the sole appellate court for patent cases. Ostensibly, this court was created to eliminate inconsistencies in the application and interpretation of patent law across federal courts, and thereby mitigate the incentives of patentees and alleged infringers to "forum shop" for a preferred venue. We perform the first econometric study of the extent of non-uniformity and forum shopping in the pre-CAFC era and of the CAFC's impact on these phenomena. We find that in patentee-plaintiff cases the pre-CAFC era was indeed characterized by significant non-uniformity in patent validity rates across circuits and by forum shopping on the basis of validity rates. We find weak evidence that the CAFC has increased uniformity of validity rates and strong evidence that forum shopping on the basis of validity rates ceased several years prior to the CAFC's establishment. In patentee-defendant cases, we find that validity rates are lower on average, but do not find either significant non-uniformity of validity rates across circuits or significant forum shopping.
Number of Pages in PDF File: 42
Keywords: patents, patent litigation, forum shopping, federal circuit, appeals, appellate courts
JEL Classification: K2, K4working papers series
Date posted: February 6, 2007 ; Last revised: May 7, 2008
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