The Green Bag, Forthcoming
18 Pages Posted: 16 Sep 2014 Last revised: 4 Dec 2014
Date Written: September 16, 2014
This has been a watershed year for the Federal Circuit, with the Supreme Court granting cert. in more patent cases than any term since the Circuit’s creation in 1982. Moreover, in case after case this year, the Justices soundly and unanimously rejected the Federal Circuit’s logic.
Some attribute the tension between the Federal Circuit and the Supreme Court to a clash between rules and standards, but that view misses the heart of what is occurring. Rather, a strong message echoes through the six Supreme Court decisions. It is a message about restraint, about carefully constructed logic, and about coming into the fold of judicial decision-making. This is a coming of age for the Federal Circuit — or at least the Supreme Court seems determined to coax, cajole and, when necessary, club the Federal Circuit into coming of age.
This article examines the messages evident in recent Supreme Court decisions and evaluates whether the Court appears to be gaining ground. Although some indications are positive, others suggest that the Federal Circuit may not be entirely ready to relinquish its role as the judiciary’s enfant terrible.
Suggested Citation: Suggested Citation
Feldman, Robin, Coming of Age for the Federal Circuit (September 16, 2014). The Green Bag, Forthcoming; UC Hastings Research Paper No. 119. Available at SSRN: https://ssrn.com/abstract=2496763