Who's at the Helm? The Federal Circuit's Rule of Deference and the Systemic Absence of Controlling Precedent in Matters of Patent Litigation Procedure
American Intellectual Property Law Association Quarterly Journal, Vol. 37, 2009
46 Pages Posted: 28 Mar 2013
Date Written: January 1, 2009
This article considers the Federal Circuit’s rule of deference to the law of the regional circuits in matters of procedure as that rule approaches its twenty-fifth anniversary. Using the recent Bell Atlantic v. Twombly pleading case as an illustration, the article observes that the structure of the current appellate review scheme creates a systemic absence of controlling precedent relating to patent litigation procedure. Moreover, the arguments usually advanced for the rule’s existence, including efficiency gains and legislative history, are doubtful. As prior scholarship has shown, the rule is not a natural byproduct of the appellate structure created by Congress when it passed the Federal Circuit’s founding legislation, but rather a notable exception to the principal of competence underlying the federal appellate system. When properly situated as an exception to the norm, the burdens created by the rule ultimately outweigh the benefits. The rule of deference should thus never have been adopted, and should be overturned.
Keywords: rule of deference, patent litigation, Federal Circuit
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