Restructuring the Federal Circuit
52 Pages Posted: 9 Jan 2014 Last revised: 31 Dec 2014
Date Written: January 18, 2014
The de facto steward of U.S. patent law is the United States Court of Appeals for the Federal Circuit, which is the exclusive appellate venue for patent cases. As the perceived importance of the patent system has steadily increased since the court’s formation in 1982, the Federal Circuit’s performance has been closely followed by an ever-expanding group of practitioners, academics, and other interested observers, who have not been shy about pointing out the court’s deficiencies. Common complaints about the Federal Circuit’s case law and the quality of its decision-making include: panel-dependency, formalism, indeterminacy, and the over- or under-enforcement of certain doctrines. The academic literature offers a variety of proposals for remedying or compensating for the Federal Circuit’s perceived shortcomings, such as having specialized patent trial judges, expanding the number of circuit courts that hear patent appeals, and modifying the Federal Circuit’s jurisdiction.
Compared to existing proposals, this Article takes a different approach to analyzing the Federal Circuit’s problems by focusing primarily on the judges themselves and their adjudicatory environment. Lessons from cognitive psychology, management science, and the literature on judicial behavior suggest that many of the complaints about the court are potentially grounded in, or at least aggravated by, the expertise developed by the judges and the internal dynamics of the court, which may adversely affect the Federal Circuit’s ability to reconsider its precedents in a timely manner. This Article explores how the Federal Circuit, in its current form, may have difficulty self-correcting, and proposes that a solution may lie in staffing the Federal Circuit with only district judges who serve staggered terms of limited duration.
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