The JPML is a seven-judge panel with authority to transfer cases involving common factual questions to a single district for consolidated pretrial proceedings. But Nofal argues that displaced litigants "lose valuable legal strategy" and have limited options when faced with an adverse court order. He has lots of interesting details and statistics on the JPML—something I knew fairly little about. He argues that the JPML escapes meaningful appellate supervision—the circuits have mandamus authority, but it is shared among the circuits under a unique time-splitting scheme. And he also criticizes what he terms the "transitory forum loophole," whereby defendants may benefit from law in the transferee forum rather than the plaintiff's chosen forum.
Nofal next turns to the Federal Circuit. While the creation of this court may have made patent law more consistent and patent decisions more expedient, Nofal argues that its de novo review of claims raises costs for patent litigants and that its "myopic" and "formalistic approach" is "antithetical to the concept of individualized justice because it fails to perceive how judicial rulings affect innovation, society, or the parties to a suit."
Nofal argues that both of these problems could be addressed by giving the Federal Circuit exclusive jurisdiction over pre- and post-JPML transfer orders:
Much like The Odd Couple, the Federal Circuit and JPML can benefit each other in various ways. The Federal Circuit can draw on its successful unification of patent law to harmonize [multi-district ltigiation (MDL)] jurisprudence, and harmonizing MDL jurisprudence can enable the Federal Circuit to speak on issues outside its patent law jurisprudence.Would this work? I don't know enough about the JPML to know if there is a problem, or if Nofal's solution would address it, but his article makes me want to learn more. And I think his adjustment to Federal Circuit jurisdiction is an interesting twist on Paul Gugliuzza's Rethinking Federal Circuit Jurisdiction, which argued that patent law would benefit from changing the Federal Circuit's non-patent jurisdiction, and particularly by adding non-patent commercial cases. (Sarah Tran and her students blogged here about Gugliuzza's article and the ensuing debate in the Georgetown Law Journal.)
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