Percolation, Uniformity, and Coherent Adjudication: The Federal Circuit Experience
30 Pages Posted: 10 Oct 2013 Last revised: 1 Jan 2015
Date Written: November 2013
Many concerns were voiced at the time that appeals in patent cases were centralized in the United States Court of Appeal for the Federal Circuit. Most of these have been allayed by the Federal Circuit’s performance, which has made patent law much more predictable. However, a problem that was largely unforeseen has emerged: the high cost of eliminating intercircuit debate. The architects of the Federal Circuit certainly realized that channeling appellate cases to a single forum would limit percolation. However, they saw uniformity and the need to limit forum shopping as critical goals. As important, they seriously discounted the value of percolation in the statutory context — they thought of it, as Dan Meador put it, as “a euphemism for incoherence.” Yet the experience of the Federal Circuit suggests that in the absence of percolation, much can go awry. After describing the problems the current system has generated, this paper discusses three strategies for restoring percolation while preserving the Federal Circuit’s important role in developing patent jurisprudence: 1) greater deference to the Patent and Trademark Office, now that it has assumed new responsibilities under the American Invents Act; 2) greater deference to the district courts operating under the new Patent Cases Pilot Program; and 3) interchange with the specialized courts that have been established in foreign countries. In particular, the EU’s move to a Unitary Patent System offers provocative opportunities.
Keywords: patents, Federal Circuit, jurisprudence, percolation
JEL Classification: K30, K40, O34
Suggested Citation: Suggested Citation