Wednesday, August 1, 2012

Paul R. Gugliuzza—Rethinking Federal Circuit Jurisdiction

Does the Federal Circuit’s non-patent caseload impact the development of its patent jurisprudence? In Rethinking Federal Circuit Jurisdiction, 100 Geo. L.J. 1437 (2012), Professor Paul R. Gugliuzza (University of Florida Levin College of Law) argues that the Federal Circuit’s non-patent docket might underexpose the court to relevant issues impacting innovation policy and that the court’s concentrated patent docket may marginalize some of its non-patent cases. Professor Gugliuzza concludes by proposing a framework for a reimagined Federal Circuit docket that would rectify these problems.

Despite the Federal Circuit’s fame for its exclusive jurisdiction over appellate patent law, a majority of the court’s cases involve non-patent matters, such as veteran benefits and government contracts cases, among others. These non-patent areas that comprise nearly sixty percent of the court’s docket were previously within the jurisdiction of several “specialized” courts that Congress collapsed into the Federal Circuit. Professor Gugliuzza suggests that Congress may have assembled the court’s current docket out of convenience rather than to generalize the court’s exposure to legal issues.

Professor Gugliuzza argues that the Federal Circuit’s non-patent jurisdiction does not provide the court a broad enough perspective to properly understand factors that affect innovation. Since nearly all of the non-patent cases before the Federal Circuit involve the federal government, the court is underexposed to market forces that might motivate innovation. More broadly, Professor Gugliuzza argues that the Federal Circuit’s non-patent docket may be too specialized itself to sufficiently generalize the court’s patent jurisprudence. Further, the extensive statutory and regulatory nature of veteran benefits, government contracts, and tariff schedules may explain the court’s preference for bright-line rules.

While the Federal Circuit’s non-patent docket may impair patent jurisprudence, Professor Gugliuzza argues that the inverse might also be true. The quantity and frequency of patent cases has significantly increased since the court’s creation and patent law undoubtedly consumes a disproportionate amount of the court’s time. Professor Gugliuzza suggests that this increasing focus on patent law (among other factors) may marginalize certain types of Federal Circuit cases.

Professor Gugliuzza proposes a novel solution to the “patent crisis”: revamp the entire breadth of Federal Circuit appellate jurisdiction. He suggests that Congress redistribute cases involving veterans benefits, government contracts, and government personnel cases among the regional circuits. He further proposes that the Federal Circuit hear a cross-section of cases currently appealed to the regional circuits to help generalize the court’s docket.

Professor Gugliuzza's proposals have triggered a debate at the Georgetown Law Journal. A response to the Gugliuzza article has been published and will soon be followed by a second response and a reply by Professor Gugliuzza. [Written Description will discuss all the pieces on this blog in one post after they are all published.] It is not surprising that Professor Gugliuzza's article has received so much attention. Concern about the Federal Circuit’s patent jurisprudence has become relatively commonplace among scholars. See e.g. Craig Allen Nard & John T. Duffy, Rethinking Patent Law’s Uniformity Principle, 101 Nw. U. L. Rev. 1619 (2007); Rochelle Cooper Dreyfus, The Federal Circuit: A Continuing Experiment in Specialization, 54 Case W. Res. L. Rev. 769 (2004); Dan L. Burk & Mark A. Lemley, The Patent Crisis and How the Courts Can Solve It (2009). By identifying more variables in the Federal Circuit/patent law equation, Professor Gugliuzza’s article provides a bold and thought-provoking approach to injecting some beneficial generalizing influence into the court’s docket.

Drafted by Derik Sanders (, a 2014 Juris Doctor Candidate at SMU Dedman School of Law and research assistant to Professor Sarah Tran.

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