The Supreme Court and the Federal Circuit: Visitation and Custody of Patent Law

Authors

Rebecca S. Eisenberg, University of Michigan Law SchoolFollow

Document Type

Commentary

Publication Date

2007

Abstract

The U.S. Supreme Court’s relationship to patent law sometimes seems like that of a non-custodial parent who spends an occasional weekend with the kids. The custodial parent is, of course, the U.S. Court of Appeals for the Federal Circuit. The Federal Courts Improvement Act of 1982 consolidated intermediate appellate jurisdiction over patent law cases in this single court, which hears appeals from the U.S. Patent and Trademark Office (“PTO”), the U.S. District Courts, the U.S. Court of Federal Claims, and the U.S. In-ternational Trade Commission. Day to day it is the Federal Circuit that reviews contested decisions of the institutions that administer the patent sys-tem. Congress created the Federal Circuit in order to achieve national uniformity, doctrinal stability, and predictability in patent law—leaving some question as to the appropriate role for the Supreme Court. The Su-preme Court controls the frequency of its patent law visits, and it is free to grant certiorari more often if it is unhappy with the Federal Circuit’s stew-ardship. But the Supreme Court has other work to do; it is an extraordinary year when it manages to review as many as three patent cases, as it did this past term. When each of these Supreme Court visits eventually comes to an end and everyday life resumes, it becomes plain once again that the Federal Circuit is, for all practical purposes, the parent in charge. The increasing propensity of the Supreme Court to grant review in pat-ent cases suggests that it is concerned about how good a job the Federal Circuit is doing. But the consolidation of intermediate appellate jurisdiction in a single court presents special challenges for Supreme Court review. First, how does the Court decide which cases to review without circuit splits to signal important and contested issues? Second, what benchmarks can it use to evaluate the jurisprudence of a court that stands alone in its field? Third, how can it control future decisions of an expert court that disagrees with it?

Recommended Citation

Eisenberg, Rebecca S. "The Supreme Court and the Federal Circuit: Visitation and Custody of Patent Law." Mich. L. Rev. First Impressions 106 (2007): 28-33.