Is the Federal Circuit Succeeding? An Empirical Assessment of Judicial Performance

77 Pages Posted: 18 Mar 2004

See all articles by R. Polk Wagner

R. Polk Wagner

University of Pennsylvania Law School

Lee Petherbridge

Loyola Law School Los Angeles


As an appellate body jurisdictionally demarcated by subject matter rather than geography, the United States Court of Appeals for the Federal Circuit occupies a unique role in the federal judiciary. This controversial institutional design has had profound effects on the jurisprudential development of the legal regimes within its purview - especially the patent law, which the Federal Circuit has come to thoroughly dominate in its two decades of existence.

In this Article, we assess the court's performance against its basic premise: that, as compared to prior regional circuit involvement, centralization of legal authority will yield a clearer, more coherent, and more predictable legal infrastructure for the patent law. Using empirical data obtained from a novel study of the Federal Circuit's jurisprudence of claim construction - the interpretation of language defining a patent's scope - we conclude that, on this indicator at least, the record is decidedly mixed, though there are some encouraging signs.

Specifically, the study indicates that the court is sharply divided between two basic methodological approaches to claim construction, each of which leads to distinct results. The dominant analytic framework gained additional favor during the period of the study, and yet the court became increasingly polarized. We also find that the significantly different approaches to claim construction followed by Federal Circuit judges has led to panel-dependency; claim construction analysis is clearly affected by the composition of the three-judge panel that hears and decides the case.

While little in the results of this study would lead one to conclude that the court has been an unqualified success, we believe that the picture of the Federal Circuit that emerges is of a court in broad transition. Driven in part by new appointments and an effort to respond to its special mandate, a new Federal Circuit is emerging - one that appears to be more rules-driven and more consistent than before. It is too early to be sure, but the findings here, perhaps bolstered by the procedural and jurisprudential reform suggestions we derive from the results, suggest that the Federal Circuit's unique position in the judiciary may yet be vindicated.

Keywords: Federal Circuit, patents, patent law, claim construction, judiciary, judges, statistical analysis

JEL Classification: K11, K29, K39, K41, O34

Suggested Citation

Wagner, R. Polk and Petherbridge, Lee, Is the Federal Circuit Succeeding? An Empirical Assessment of Judicial Performance. U of Penn, Inst for Law & Econ Research Paper 04-08; and U of Penn. Law School, Public Law Working Paper 51, Available at SSRN:

R. Polk Wagner (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
267-433-4431 (Phone)

Lee Petherbridge

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-8194 (Phone)
213-380-3769 (Fax)

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