Federal Circuit Patent Precedent: An Empirical Study of Institutional Authority and IP Ideology

Abstract:     
In this paper, we aim to better understand the institutional authority of the Federal Circuit as a source of law as well as the influence of pro-patent and anti-patent ideological forces at play between the Supreme Court, Federal Circuit, and the district courts. Our specific focus is on the district courts and how they cite Federal Circuit precedent relative to Supreme Court precedent to support their decisions, whether they be pro-patent or anti-patent. Using a variety of citation approaches and statistical tests, we find that federal district courts treat the Federal Circuit as more authoritative (compared to the Supreme Court) on patent law, than they treat the regional circuits (compared to the Supreme Court) on copyright law. Second, the Federal Circuit’s precedent tends to be relied on more in pro-patent opinions than in anti-patent opinions. In addition, both of these effects are stronger in how the district courts use the precedent – i.e., how many times precedent is cited – than in what higher court precedent is used.

Number of Pages in PDF File: 28

Keywords: patents, intellectual property, positive political theory, citations, empirical legal studies, federal circuit, copyright, judges, politics, ideology

JEL Classification: K29, K39

working papers series