Rethinking Patent Law’s Uniformity Principle
2007; Northwestern University School of Law; Volume: 101; Issue: 4 Linguagem: Inglês
ISSN
0029-3571
Autores Tópico(s)Legal and Constitutional Studies
ResumoINTRODUCTION Uniformity has enjoyed veritable talismanic status in our legal system, something thought to be virtuous in almost every area of law.1 Patent law is no exception.2 Indeed, of all of animating forces behind creation of Court of Appeals for Federal Circuit, desire for uniformity in application of patent law was foremost.3 court, recognized as single most significant institutional innovation in field of intellectual property in last quarter-century,4 understood uniformity to be its mandate and pursued that end with vigor. In first decade of its existence, Federal Circuit earned praise for achieving a desirable degree of uniformity in place of regional circuit precedents perceived to be disjointed and conflicting.5 Even today, court continues to earn praise, when it is praised, for being superior to system of regional circuits, which produced a widely fractured set of precedents.6 Yet uniformity is not a proxy for quality. That a policy is uniformly applied says very little about its soundness or desirability. As novelty of having a uniform set of circuit precedents for patent law has worn off, commentators have increasingly turned to evaluating Federal Circuit's precedents on merits. issue is whether Federal Circuit precedent adequately reflects current knowledge regarding beneficial functions of patent system in generating technological innovation, potential problems of patent rights in foreclosing legitimate competition, and need for predictable rules capable of curtailing litigation costs. answers thus far have not been encouraging. Federal Circuit has been accused of producing an isolated and sterile jurisprudence that is increasingly disconnected from technological communities affected by patent law.7 court's precedents have been viewed as increasfing] cost of patent acquisition, augmenting] burdens of patent administration, and encouraging] free riders-trends that make both patent system and process of innovation less attractive alternatives.8 Indeed, in 2006, Solicitor General and United States Patent and Trademark Office (PTO) represented to Supreme Court that Federal Circuit's test of patentability-a centerpiece of circuit's patent jurisprudence for more than twenty years-is misguided and counterproductive and has exact[ed] a heavy cost in form of unwarranted extension of patent protection....9 In some areas of patent law, Federal Circuit's precedents have also been faulted for hav[ing] brought less certainty and predictability to patent enforcement.10 court's high rate of reversal of district courts demonstrates that, despite circuit's uniform national jurisdiction, the promises of pre-trial predictability and expedient patent litigation seem to remain a tantalizing dream.11 Even commentators who were previously quite positive about Federal Circuit experiment have acknowledged continuing problems perceived in court's administration of patent law.12 In sum, several commentators and other legal actors are beginning to place blame for a variety of perceived ills squarely on Federal Circuit. Then-Professor Kimberly Moore, in reviewing statistical trends for reversal rates on patent claim construction, perhaps best summed up current mood by concluding: The fault, at this point, undoubtedly lies with Federal Circuit itself.13 If fault is to be attributed to Federal Circuit, it is worthwhile to ask whether fault is a transient problem of court's current membership or a more fundamental difficulty in jurisdictional experiment with centotalization and specialization. Indeed, this issue is particularly pressing because Congress continues to ponder additional centralization of judicial business in specialized courts.14 We believe that persistent problems in institutions-ones that continue for years even as membership in institution changes-are unlikely to be fault of individuals who serve institution. …
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