Short-Circuiting Contract Law: The Federal Circuit's Contract Law Jurisprudence and IP Federalism

72 Pages Posted: 4 Feb 2014 Last revised: 28 Nov 2014

See all articles by Shubha Ghosh

Shubha Ghosh

Syracuse University College of Law

Date Written: February 12, 2014

Abstract

The Federal Circuit was established in 1982 as an appellate court with limited jurisdiction over patent claims. However, the Federal Circuit has used this limited jurisdiction to expand its reach into contract law, developing a federal common law of contract in cases involving patents. Given the growing importance of patent litigation in the past three decades, this creation of an independent body of contract law creates uncertainty in transactions involving patents. This troublesome development received attention in Stanford v Roche, a 2011 Supreme Court decision uphold the Federal Circuit's invalidation of a patent assignment to Stanford University. This Article documents the development of the Federal Circuit's contract jurisprudence and develops a theoretical framework for assessing this development based on scholarship on contractual innovation by Gilson, Sabel, & Scott (2013). The Article concludes with a recommendation that the Federal Circuit defer to the contractual orderings of the parties in a manner consistent with intellectual property federalism.

Keywords: Intellectual Property; Patent; Contract; Federalism; Federal Courts

JEL Classification: K2

Suggested Citation

Ghosh, Shubha, Short-Circuiting Contract Law: The Federal Circuit's Contract Law Jurisprudence and IP Federalism (February 12, 2014). Univ. of Wisconsin Legal Studies Research Paper No. 1247. Available at SSRN: https://ssrn.com/abstract=2390214 or http://dx.doi.org/10.2139/ssrn.2390214

Shubha Ghosh (Contact Author)

Syracuse University College of Law ( email )

900 S. Crouse Avenue
Syracuse, NY 13244-2130
United States

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