Thirty years ago, Congress created the Federal Circuit for the overriding purpose of bringing uniformity to patent law. Yet less than half of the court’s cases are patent cases. Most Federal Circuit cases involve veterans benefits, government-employment actions, government contracts, and other matters. Although existing literature purports to study the Federal Circuit as an institution, these projects focus largely on the court’s patent cases. This Article, by contrast, considers whether the court’s nonpatent docket might affect the development of patent law and whether the court’s specialization in patent law has consequences for how it decides nonpatent cases.
These inquiries result in two primary contributions. First, drawing on institutional-choice theory, this Article suggests that certain litigants—particularly military veterans but also government employees and government contractors— should not be forced to litigate appeals in a specialized court in Washington, D.C. Second, the Article offers a structural remedy that might help cure a frequently discussed problem with Federal Circuit patent law: that it is not sufficiently sensitive to innovation policy. By replacing some of the court’s current nonpatent docket with a variety of commercial disputes (over which the Federal Circuit would not have exclusive jurisdiction), the court might better understand the role that patents play in stimulating (or impeding) innovation in different industries.
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