Patent Law Uniformity?

Abstract

Following the difficult economic conditions of the 1970s the United States Congress decided to create the United States Court of Appeals for the Federal Circuit. In making the court Congress thought it was a good idea to circumscribe jurisdiction by subject matter area rather than by geographical area. One subject matter area included in the new court’s jurisdiction was patent law, an area in which Congress hoped that unification of appellate jurisdiction would produce a more coherent, more predictable, and more useful legal infrastructure.

This institutional arrangement has always been controversial. And now, after having given the federal circuit a quarter of a century to perform, some are beginning to argue that the arrangement should be dismantled and replaced with one that allows many more judges to hear patent appeals. A central argument underlying this proposal is that the current institutional arrangement - in which most patent appeals are heard by the federal circuit subject to review by the Supreme Court - has caused a lack of diversity in patent jurisprudence, which has in turn seriously suppressed its development.

Using empirical techniques this Article explores the contention that there is a lack of diversity in patent jurisprudence. What it finds is that although the results do not paint a complete picture of whether there is “optimal” diversity in patent jurisprudence, the weight of the evidence suggests that federal circuit patent jurisprudence is diverse. The Article interprets the observed diversity to suggest that patent jurisprudence may well be capable of developing in response to changing circumstances.