Monday, October 22, 2012

Gugliuzza Debate: Rethinking Federal Circuit Jurisdiction

This blog recently featured an impressive and provocative article by Paul Gugliuzza titled Rethinking Federal Circuit Jurisdiction (original post) addressing what many scholars consider the "patent crisis." Now thirty years since its creation, the U.S. Court of Appeals for the Federal Circuit has in recent years increasingly become the subject of heated contention and widespread criticism within the intellectual property community. Since appearing in the June 2012 edition, the proposals set forth by Professor Gugliuzza to reconfigure the Federal Circuit's jurisdiction have triggered a debate at the Georgetown Law Journal. Two engaging response comments have been submitted, followed by a reply from Professor Gugliuzza. The remainder of this post highlights the key aspects of this debate.

Gugliuzza's Rethinking Federal Circuit Jurisditcion

In his original article, Professor Gugliuzza underscores the significance of the Federal Circuit's current non-patent docket caseload. Non-patent cases comprise nearly sixty percent of the court's docket, yet the breadth of these cases is limited, predominately involving the federal government as a litigant. Veterans-benefits, government contracts, and government-personnel cases comprise over forty percent of the court's entire caseload. Professor Gugliuzza argues that this structure limits the court's understanding of innovation factors, does not adequately generalize the court's patent jurisprudence, and advances a preference towards bright-line rules across the court's entire docket. Further, Professor Gugliuzza points out that the disproportionate patent concentration in the Federal Circuit's caseload may marginalize the court's jurisprudence of certain types of non-patent cases.

As a solution, Professor Gugliuzza proposes reconstructing the Federal Circuit's jurisdictional structure into one of "limited specialization." Under this novel approach, the current non-patent caseload would be redistributed by Congress among the regional circuits. He further proposes to fill this void with a cross-section of--preferably commercial--cases currently appealed to the regional circuits. This would improve upon the Federal Circuit's current jurisdictional structure in two ways. It would expose the court to the larger commercial context in which patents operate and patent disputes arise, and it would remove the concerns of marginalization facing the federal-government-as-a-litigant cases being heard in "the patent court."

Cecil Quillen's Response Essay

In his response, Cecil Quillen argues that Professor Gugliuzza's limited specialization proposal fails to address a major problem plaguing the Federal Circuit's jurisdictional structure. In Mr. Quillen's opinion, the Federal Circuit's practical monopoly on patent appeals prevents a "self-correcting" mechanism, whereby courts can quickly correct mistakes through reconsideration of an issue on its merits, unconstrained by stare decisis. Mr. Quillen contends that restoring appellate jurisdiction in patent infringement cases to the regular courts of appeals would solve this problem, with the additional benefit of satisfying innovation concerns through generalization.

Mr. Quillen also expresses skepticism that Professor Gugliuzza's limited specialization model has a reasonable chance of implementation, noting the likely strong opposition from lobbyists, attorneys, and federal agencies. He argues that Professor Gugliuzza's proposal would be even less likely to be adopted than a restoration of jurisdiction to the regular courts or the somewhat similar "Nard & Duffy proposal for parallel appellate tracks." Finally, Mr. Quillen is leery that the Federal Circuit is open to learning from the cases it hears, a critical assumption on which Professor Gugliuzza's proposal rests. In conclusion, while Mr. Quillen appreciates the creativity of Professor Gugliuzza's proposal, he submits that it falls short, addressing only part of what he regards as the "Federal Circuit problem."

Ori Aronson's Response Comment: Innovation, Aggregation, and Specialization

The second response to Professor Gugliuzza's scholarship came from Professor Ori Aronson. Professor Aronson considers Gugliuzza's article a fascinating critique of Federal Circuit jurisdiction, stimulating our institutional imagination in search of a better structure. Noting that judges work within an institutional context, Professor Aronson contends that the composition of such "context matters." He thus agrees that the limited-specialization model's alteration of institutional design would be a potent method of affecting the content of the court's normative commitments.

Professor Aronson then builds upon this to develop his concept of the "knowledge-production paradigm" of adjudication, through which an intermediary court such as the Federal Circuit can be viewed as either a "generalist innovator" or a "specialized aggregator." In exploring the specialized aggregator role of the Federal Circuit, Professor Aronson asserts that "to be a good specialist, you must also be a pretty good generalist," the message implied in Professor Gugliuzza's proposal for generalizing the court's non-patent docket. Professor Aronson uses this as a platform to explore the benefits of a system comprised of these types of limited-specialization courts, each providing deliberative input for normative innovation and articulation.

Professor Aronson credits Professor Gugliuzza's proposal and its implications for both aggregating a more uniform body of patent law and deriving unique analysis by framing generalist cases with the institutional consideration of a patent specialist court. However, Professor Gugliuzza's analysis focuses mostly on economic issues, while Professor Aronson develops the generalist concept further. Aronson asserts that a marketplace actor contemplating innovative enterprise operates with a plurality of legal doctrines in mind: patent or copyright law; rules of property and contract; enforcement possibility of criminal norms; labor law; etc. Economic reality, the central goal of the limited-specialization model, "is regulated by the full array of legal devices" of a generalist court. Accordingly, Professor Aronson identifies the "random allocation" mechanism for achieving the limited-specialization court as the most desirable of those proposed by Professor Gugliuzza. The random allocation of cases from the regional appellate courts could be tailored by subject matter and adjusted to fit institutional needs of the Federal Circuit. Furthermore this randomization would maintain fairness among non-patent litigants, and provide the additional benefit of foiling strategic manipulation.

Professor Gugliuzza's Response: Pluralism on Appeal

Recently, Professor Gugliuzza submitted a reply to these two critiques of Rethinking Federal Circuit Jurisdiction. Professor Gugliuzza argues that by extending institutional analysis to the Federal Circuit's non-patent docket, he actually frames "the Federal Circuit problem" in a more comprehensive way than Mr. Quillen and others. Professor Gugliuzza rejects Mr. Quillen's expressed doubt regarding whether the Federal Circuit--given a more generalized docket--would be amenable to adapting its patent jurisprudence. He reasserts his opinion that better acquainting judges with the context in which patent disputes arise is an intuitive and effective method for transforming patent law.

While conceding that the polycentric model favored by Mr. Quillen may very well benefit patent law, Professor Gugliuzza argues that the model is an incomplete solution. Professor Gugliuzza defines a broader Federal Circuit problem, one that deals with more than just patent law. His solution of limited specialization additionally attempts to provide a better forum for the Federal Circuit's non-patent litigants. Exclusive jurisdiction over these non-patent cases raises concerns about the quality of jurisprudence they can achieve in a centralized "patent court," and Professor Gugliuzza offers the potential solution of distributing such cases among the regional circuits.

Myriad solutions have been offered to correct flaws in the current jurisdictional structure. Although diverse, many of these proposals involve bringing additional voices and perspectives into the appellate process. See, e.g., Arti K. Rai, Engaging Facts and Policy: A Multi-Institutional Approach to Patent System Reform, 103 Colum L. Rev. 1035 (2003); Michael Abramowicz, Essay, En Banc Revisited, 100 Colum L. Rev. 1600 (2000); John M. Golden, The Supreme Court as "Prime Percolator": A Prescription for Appellate Review of Questions in Patent Law, 56 UCLA L. Rev. 657 (2009); Craig Allen Nard & John F. Duffy, Rethinking Patent Law's Uniformity Principle, 101 Nw. U. L. Rev. 1619 (2007). Professor Gugliuzza suggests this common interest might be called appellate pluralism, and that his limited-specialization model employs a type of internal approach, bolstered by Professor Aronson's observation that "to be a good specialist, you must also be a pretty good generalist."

Professor Gugliuzza contends that the architects of the Federal Circuit did in fact recognize the value of appellate pluralism, but that they underestimated how general the court's non-patent jurisdiction needed to be. A limited-specialization model gives Congress an option to fix that mistake. Rather than abandon centralization in patent law, Professor Gugliuzza argues for a modification of the Federal Circuit's non-patent jurisdiction that might improve patent law, promote doctrinal uniformity, and provide a better non-patent litigant forum.


As Professor Gugliuzza noted in his response essay, there are many different proposals addressing what these authors would agree is a critical patent law issue: the need for Federal Circuit reform. Although simultaneous implementation of these proposals would in many cases be impractical if not impossible, the overlap of certain benefits and solutions that such proposals claim to provide suggests that such proposals are not necessarily incompatible. This point is significant, because these common benefits (i.e. the benefit of generalization in patent jurisprudence) may provide anchors upon which the empirical research desired by Professor Gugliuzza can be focused. As its thirty year anniversary coincides with final implementation of the massive Leahy-Smith America Invents Act, determining what Professor Gugliuzza defines as the Federal Circuit's "optimal jurisdiction" will be no simple task. The quality and quantity of work surrounding this hot topic seem bound to bear fruitful insight and conclusions, and the debate produced by such worthy scholars as the ones above may provide a version of Mr. Quillen's "self-correcting mechanism" before resolutions are put into practice.

Drafted by Alex Young (, research assistant to Professor Sarah Tran, and a 2015 Juris Doctor candidate at SMU Dedman School of Law. He received his B.S. in Mechanical Engineering from the University of Virginia. Prior to law school, he worked as a patent examiner for the USPTO.

No comments:

Post a Comment