The Federal Circuit's Acquiescence (?)

33 Pages Posted: 14 Mar 2017 Last revised: 10 Jul 2017

Date Written: April 20, 2017


The U.S. Court of Appeals for the Federal Circuit is a unique institution within the federal judiciary. It is the only intermediate appellate court with nationwide jurisdiction over particular subject matter. Only the Supreme Court has the same national geographic scope. Of particular importance is its appellate jurisdiction over cases arising under the patent laws. It is also unique that, given its patent expertise, it also oversees an expert agency, the United States Patent and Trademark Office. This Essay explores the relationship of the Federal Circuit vis-à-vis the Supreme Court and the USPTO over three periods of time. It first explores the early years of the court’s existence, where it generally ignored – if not overruled – Supreme Court precedent in light of the Court’s absence from the field of patent law. The Federal Circuit generally refused to defer to the USPTO in a manner generally inconsistent with administrative law principles. The second period of time is that of transition. The Supreme Court began to reengage with patent law, generating resistance from the Federal Circuit. Similarly, both the Supreme Court cases and legislative develops began to shift power in patent law away from the Federal Circuit and toward the USPTO. The third, final era is that of the Federal Circuit’s acquiescence to the jurisprudence of the Supreme Court and to deference to the USPTO. Two pending en banc cases however may portend the end of this era of acquiescence, hence the question mark in this Essay’s title.

Keywords: Federal Circuit, Supreme Court, aqua, wi-fi one, patentable subject matter, myriad, prometheus, patent, patent office, USPTO, patent and trademark office, deference, administrative law

JEL Classification: O3

Suggested Citation

Holbrook, Timothy Richard, The Federal Circuit's Acquiescence (?) (April 20, 2017). American University Law Review, Vol. 66, pp. 1061-1092 (2017); Emory Legal Studies Research Paper No. 17-440. Available at SSRN:

Timothy Richard Holbrook (Contact Author)

Emory University ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-712-0353 (Phone)

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