The Federal Circuit in the Shadow of the Solicitor General

Abstract

The Federal Circuit is an innovation. Created by Congress in 1982 as a way to centralize intermediate appellate jurisdiction in patent cases, the court was expected to create a unified body of patent precedents that would be developed by judges having some substantial degree of experience and expertise in the field. That goal has largely been achieved, though there remains a lively debate as to whether Congress should have aimed for a somewhat different goal. Yet even where innovations are successful in achieving their original goals, they often produce unintended consequences. So too for the Federal Circuit. The innovative jurisdictional structure of the new appellate court has fostered a unique relationship between the Federal Circuit and the Solicitor General’s Office and has, in a subtle but meaningful way, shifted power over the development of patent law from the judicial to the executive branch of government. This Article will document that transfer of power and will consider whether that shift in power should be welcomed or feared.