"Move over, Randall Rader": scrap US Federal Court monopoly of patent cases, says judge

The excellent and ever-thoughtful Dan Bereskin QC (Bereskin Parr) has been the source of many an interesting insight from which this Kat has benefited over the years, so his emails are always welcome and eagerly devoured.  Today's epistle was no exception, Dan having unearthed a somewhat unorthodox approach to the normally accepted view that specialist tribunals do better than random ones when it comes to hosting the sort of detailed specialist litigation which characterises patent suits. Writes Dan:

"Under a 1982 Act of Congress called the Federal Courts Improvement Act, the United States Federal Circuit was granted exclusive jurisdiction over patent appeals. The motive was to reduce the lack of uniformity and uncertainty of legal doctrine in relation to the administration of patent law. Uniformity is a coveted goal in many areas of the law, but what if the result is uniformly bad?  In "Is It Time to Abolish the Federal Circuit’s Exclusive Jurisdiction in Patent Cases?", an insightful, carefully nuanced, and at times funny critique of the current system, Hon. Diane P. Wood (right), Chief Judge of the U.S. Court of Appeals for the 7th Circuit, argues that the Federal Circuit should no longer have exclusive jurisdiction over patent appeals. Instead, appellants should be able to choose between review in the Federal Circuit or in the regional circuit with jurisdiction over the district court from which the claim first was filed.

Her critique is said to rely on “three of the leading legal thinkers of our times: the Dixie Chicks (left), Robin Thicke, and Burt Bacharach.” From the Dixie Chicks’ song “Wide Open Spaces” we learn that by providing “wide open spaces” to the adjudication of patent cases, new ideas would be encouraged to “percolate and grow”. Also from the same song, “She . . . needs room to make her big mistakes”. Judge Wood argues that “mistakes teach valuable lessons”, that “a proposition that seems obvious to one person might seem questionable to another, ambiguous to a third, and flatly wrong to a fourth.”

If on occasion mistakes are made, we can learn from them, and make the necessary repairs. This surely is better than perpetuating the same mistakes as a specialized court may be more likely to do, as evidenced perhaps by the current low standard of non-obviousness which has been said to impose “a heavy tax on invention and discourag[ing] entry into innovative enterprises” (citing Rochelle Cooper Dreyfuss, "In Search of Institutional Identity: The Federal Circuit Comes of Age", 23 BERKELEY TECH. L.J. 787, 796 (2008), quoting Rochelle Cooper Dreyfuss, "The Federal Circuit: A Case Study in Specialized Courts", 64 N.Y.U. L. REV. 1, 5 (1989)).

Judge Wood makes a powerful argument for allowing regional circuits to rule on patent appeals: her remarks are well worth careful consideration".

Judge Wood’s speech was delivered as the keynote address at IIT Chicago-Kent College of Law on 26 September 2013 and can be downloaded in its entirety here.