The Federal Circuit at Thirty (2012)

THE HONORABLE PAULINE NEWMAN*Thirty years marks another milestone in the life of the Federal Circuit, another marker in this experiment in providing economic incentive by eliminating regional differences in judicial rulings. The Federal Circuit was formed to bring this attribute to the patent law, for the differences among the regional circuits had become so extreme as to affect the economics of industrial innovation. The disparity of judicial decisions among the regional circuits was believed to have destabilized the commercial law by producing forum differences so extreme as to affect research and development of new technologies. Concern for the adverse impact on innovative industry was fueled by the economic recession of the 1970s, and led to a restructure of the federal appellate system whereby patent appeals from the district courts were removed from the regional circuits and placed in a single national court, along with patent appeals from administrative agencies, accompanied by several unrelated areas of national jurisdiction.This change in federal judicial structure did not come easily. It was hotly debated, for the nation reveres its juridical tradition whereby regional diversity is viewed as providing depth to the policy-laden issues of evolving law, sharpening judicial understanding based on varied perspectives, for eventual resolution of any national differences by the Supreme Court. This annual review by American University is valuable not only for its overview of the areas of law consigned to the Federal Circuit, but also to aid in the continuing evaluation of how this structure is working, in all the areas for which the Federal Circuit is the sole appellate tribunal. The combination in the Federal Circuit of the existing jurisdictions of the Court of Claims and the Court of Customs and Patent Appeals led to a range of subject matter no less diverse than that of the regional circuit courts. The original scope has been further enlarged to include the appeals from the Court of Appeals for Veterans Claims, from actions under the National Vaccine Injury Compensation Program, and a few other enactments. Additional assignments continue to be discussed.The patent appeals that were removed from the regional circuits, in the early years of the Federal Circuit, constituted about twelve percent of the court's total caseload. The ratio of patent-related cases is now about twenty-five percent, for the progress of technology has led to statutory changes, competitive pressures, and increases not only in litigation activity, but also in appeals from the Patent and Trademark Office tribunals and the International Trade Commission. Adjustment has also occurred in the other areas of our assigned jurisdiction, as discussed in this volume.In addition, new appointments have brought the Federal Circuit bench close to its full complement of twelve active judges, bringing further strength and experience through the most recent appointments: Judge Kathleen O'Malley, coming from the federal district bench in Ohio; Judge Jimmie Reyna, whose primary practice was in trade policy and international trade regulation; and Judge Evan Wallach, from the Court of International Trade. They have already made important contributions to all of the court's areas of jurisdiction.As I contemplate the cases now reaching the Federal Circuit, it seems to me that their most common characteristic is their factual complexity. In each of our assigned areas there is a large body of Federal Circuit precedent, and the disputes that now arise raise close questions of law and application of the law. The issues in litigation tend to reside in the grey areas where conflicting policies abut, where their decision often requires rethinking of the policy underlying the law. …