Plager on the Importance of the Federal Circuit for Patent Cases

In "Rethinking Patent Law's Uniformity Principle: A Response To Nard and Duffey," Federal Senior Circuit Judge S. Jay Plager & his law clerk note "several respects in which [they] believe the case for overturning Congress’s decision to have one court rather than many deal with patent cases falls short of persuading:"

If we were writing on a clean slate, with no prior history and no established institutions for deciding patent law issues, the question whether there should be a single court that hears all patent cases or whether that assignment should be decentralized would be a topic worthy of careful and thoughtful consideration. In theAmerican judicial system, that consideration occurred and led Congress to enact the 1982 Act that created the Federal Circuit. Though it is true that we should not be wedded to a conclusion that no longer works, those who claim change is needed bear a heavy burden to prove it.

In our view, Professors Nard and Duffy have not been able to meet that burdenwith adequate proof. There is nothing to show that recreating the potentialfor forum-shopping by litigants, and reopening the disagreement among theseveral circuits as to whether patents are good or bad as national policy, will produce better decisions than we currently get. There is no showing that the process of airing diverse views and exposing alternative approaches would be carried forward more thoughtfully and to better purpose in a milieu of multiple courts and thirty or forty judges than it currently is with one court with sixteen judges who regularly publishconcurrences and dissents, sometimes more than some observers might think desirable. This is especially so when we consider the advantages that judges who regularly see a broad cross-section of patent cases have compared to those who see only an occasional case in the field.Senior Judge Plager also discusses the consequences of the visibility, significance and impact of the court in an earlier article titled "The Price of Popularity: The Court of Appeals for the Federal Circuit 2007."