Volume 100 Online GLJ Online

Pluralism on Appeal

In a thoughtful response to my article, Rethinking Federal Circuit Jurisdiction, Ori Aronson notes that judges “work in context, be it social, cultural, or . . . institutional,” and that “context matters” to their decisions.  Indeed, the primary aim of my article was to spur a conversation about the context in which the judges of the Federal Circuit—who have near plenary control over U.S. patent law—decide cases.  That context includes many matters in narrow areas of law that bear little relation to the innovation and economic concerns that should animate patent law.  To inject those concerns into the court’s province, my article introduced the concept of limited specialization, under which the Federal Circuit would retain exclusive jurisdiction over patent cases (and possibly a few other areas) while also being granted nonexclusive jurisdiction over a variety of cases that are normally appealed to the regional circuits.

In a similarly insightful response to my article, Cecil Quillen is doubtful that limited specialization would fix what he calls “the Federal Circuit problem.”  Instead, he prefers the model of “polycentric decision making” embraced by, most notably, Professors Craig Nard and John Duffy in their important and provocative article, Rethinking Patent Law’s Uniformity Principle. Under that model, multiple appellate courts would decide patent cases, permitting inter-court dialogue and enhancing the possibility for self-correction when one court makes a mistake.

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