The Federal Circuit & International Patent Law

How do informal interactions between judges shape international IP law? Chief Judge Rader of the Federal Circuit is highly influential in international patent law, but aside from one piece by a former intern of his, I am not aware of any scholarship that has attempted to measure or evaluate this influence. In 2001, then-Judge Rader stated (in a lecture published at 5 Marq. Intell. Prop. L. Rev. 1) that he had "travel[ed] to nearly fifty countries" and discussed patent law "with the judiciaries of many of these countries." He argued that the Federal Circuit has brought "uniformity" to patent law and "driv[en] much of the international marketplace and the dynamic success we are seeing around the world." He has also told this story (reprinted at 21 Fed. Circuit B.J. 331): "Several years [before 2011], our government sent me to China on a mission of importance. In Beijing, I met with the U.S. Ambassador, Sandy Rand, who asked me to encourage the Chinese judiciary to enforce non-Chinese [IP] rights as aggressively as Chinese IP rights."

After becoming chief judge, he noted in a 2010 interview (p. 6) that he received many visits from foreign courts: "The Federal Circuit has a distinct place in international jurisprudence. Court delegations and officials from other countries see the importance of visiting here and learning more from us." In a 2011 Landslide interview he stated that one of his goals as chief was to "help improve the cooperation among international judiciaries towards a legal system worldwide that’s more friendly to an international market," and he noted that "the Federal Circuit is going to go to Tokyo this May and hold a joint judicial conference with the IP High Court of Japan. Thereafter, we’ll go to China, Korea, Russia, and beyond." On October 26 and 27, 2011, Chief Judge Rader and Federal Circuit Judges Gajarsa, Linn, Dyk, Prost, and Moore met with judges from the Japan Intellectual Property High Court, and from May 28 to 30, 2012, Chief Judge Rader and Judges Clevenger, Linn, Dyk, Prost, Moore, and Reyna met with seven judges from the Intellectual Property Rights Tribunal of the Supreme People's Court of the People's Republic of China and nearly 300 other judges from the Chinese judiciary. Is there any other area where judges on an inferior federal court have been so internationally prominent?

Despite these extensive informal interactions, international patent laws such as TRIPS seem to have no formal influence over decisionmaking at the Federal Circuit. It is clear that U.S. statutes would prevail in any direct conflict with TRIPS, as Congress has specified that "[n]o provision . . . that is inconsistent with any law of the United States shall have effect." When a court is choosing between multiple reasonable interpretations of U.S. intellectual property law, however, TRIPS and other international agreements might inform this choice: under the Charming Betsy doctrine, "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." See also Restatement (Third) of Foreign Relations Law § 114 (1986) ("Where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States."). But I am aware of only one case that suggests that TRIPS might be relevant for interpreting U.S. substantive law: in Rotec Industries, Inc. v. Mitsubishi Corp., the Federal Circuit considered an amendment to the definition of patent infringement in § 271(a) that was made for TRIPS compliance and stated, "[W]e must recognize one of the agreements' declared purposes: harmonizing worldwide patent law." After a paragraph about UK law, the court said, "[W]e must ultimately decide this issue as a matter of United States law," and described the first Federal Circuit case to interpret the amendment to § 271(a), which did not discuss TRIPS.

Of course, measuring the informal influence of any source is challenging precisely because it is informal; judges may not realize the extent to which they are influenced by international law, and even if they do, they might not care to admit it. My intuition is that Federal Circuit judges have more influence on foreign patent law than vice versa, but I think this would be an interesting topic for scholarly inquiry.