Response Essay: Rethinking Federal Circuit Jurisdiction - A Short Comment

Abstract

Professor Paul Gugliuzza in his paper titled Rethinking Federal Circuit Jurisdiction, (100 Georgetown Law Journal 1437, http://ssrn.com/abstract=1945039) proposes addressing the Federal Circuit's problem with patent law by transferring much of the subject-matter jurisdiction of the Federal Circuit other than its exclusive patent jurisdiction to other courts and filling the resulting void with appealed nonpatent cases, particularly commercial cases that involve business and economic issues, for example antitrust cases, in the hope the Federal Circuit will thereby become educated in the economics of innovation and establish patent law doctrines that foster innovation, and avoid establishing doctrines that impede and diminish innovation.

This Response paper (100 Georgetown Online Law Journal 23) notes that Professor Gugliuzza's proposal addresses only half of the Federal Circuit problem and that even if adopted would still leave the U.S. patent system without the "self-correcting" judicial structure that characterizes most other areas of Federal law. The Response paper also questions the ability of the Federal Circuit to learn innovation economics from such commercial cases given its view that it is not a policy court and only follows precedent . Examples are given of the Federal Circuit's misunderstandings of and indifference to economic literature. The Response paper also notes that the many of the participants in such commercial cases, including the Federal agencies charged with enforcing the antitrust laws, are likely to oppose their transfer to the Federal Circuit.

Keywords: Federal Circuit, appellate jurisdiction, patent law

JEL Classification: K40, K41