This is based on a speech given by the Honourable Diane Wood, Chief Judge of the US Court of Appeals for the 7th Circuit, on 26 September 2013 at the Chicago-Kent Supreme Court Review. The speech was entitled ‘Is it Time to Abolish the Federal Circuit’s Exclusive Jurisdiction in Patent Cases?’ and can be downloaded here.
1. The main argument for the present exclusive jurisdiction of the Federal Circuit for Patent Cases is uniformity of doctrine in patent law. However the evidence for previous problems with this is questionable, and it cannot be more important than quality and accuracy of decisions.
2. Another frequent argument is that a specialist court is more efficient when dealing with technical complexity. However environmental cases are no less complex and are adequately dealt with by regional courts.
3. A ‘wide open space’ is needed for courts to make necessary mistakes and for ideas to grow and percolate. Differences within the court system are a necessary part of learning. The Supreme Court learns from resolution of conflicts between Circuits or State Supreme Courts. Competition between different approaches to claim construction or obviousness may be the best way to resolve problems in these areas.
4. In response to the argument that a specialist court gives better decisions, it must be remembered that other forms of IP (copyright and trade marks) are considered in regional courts.
5. The US does not have specialised patent courts at first instance. Patent cases go to district courts.
6. There is a value in using generalist judges. The law as a general principle should not be ‘an arcane preserve for specialists’. The parties need to put case across their case in a comprehensible way to the judge, and this can be done before a generalist judge.
7. The basic legal principles of patent law are straightforward. Experts are of course required to help with factual matters, but that is also the case with many types of non-patent cases.
8. In any case, regional courts already deal with many types of disputes in which patent are involved in some way.