Competition in an open market is a good thing, or so we’ve been told. And, in an admittedly counter-intuitive way, the patent system itself promotes competition and choice by enabling small players with better ideas to compete effectively with the big boys. So why, then, shouldn’t healthy competition be brought to the realm of jurisprudence? Particularly at the appellate level? Even more particularly, how about at the level of, say, the Court of Appeals for the Federal Circuit? Hmmm….

Actually, this isn’t a crazy idea or even an original one with me.  Recent articles such as this one and this, have questioned whether the Federal Circuit’s dominance over patent law has been as beneficial as originally hoped and whether the system might benefit from additional or alternate views from sister circuits.

Personally, I have been a bit disillusioned and disappointed with the Federal Circuit in recent years.  After a promising start under former Chief Judge Markey,  the Court seems to have lost its way, at least insofar as developing a coherent, predictable body of law is concerned.  Seriously, does anyone really know how to construe a patent claim anymore? (Oh, I know, you just apply the clear guidance of Phillips v. AWH Corporation.)  Are you confident enough in your analysis to advise a client clearly and directly when millions or even billions are at stake?  Can you do so without saying "however"?  Or what about the "written description" requirement — a subject near and dear to my heart after experiencing the joys of LizardTech v. ERM?  Can anyone really claim to understand this stuff?  (And if so, can you tell me how an originally-filed claim that was allowed and issued without amendment can somehow fail to satisfy the written description requirement, particularly in light of the supposedly binding precedent of In re Gardner, 475 F.2d 1389 (CCPA 1973)?)  Do you understand it well enough to see and avoid the next twist in the "written description" requirement even before the Federal Circuit does?  How about abstracts?  How many of you once comfortably  drafted your "Abstract of the Disclosure" secure in the knowledge that what you said in the Abstract would never be held against you in construing the claims?  Think you’re likely to fall for that again?

We now effectively have a system wherein twelve lifetime judges decide the outcome of virtually any patent case important enough for the parties to take that far.  While I do not think any of the Federal Circuit judges is intentionally shirking his duties, Lord Acton’s famous dictum does come to mind.  And lack of competition does tend to make one lazy.

While the idea of "competition" among circuits might seem strange and even mildly amusing, the concept is not entirely without precedent.  My understanding is that certain venues, such as Chicago, are actively competing for bankruptcy cases, much to the worry of Delaware and New York.  Even in our own chosen field, certain venues are favored for patent litigation, at least among plaintiffs.  And it wasn’t all that long ago that the notorious Eighth Circuit was favored among defendants.  Cities and states have long competed for tourists’ dollars, political conventions and sporting events.  Why not a bit of competition for the excitement of patent appeals as well?

On a serious level, there’s much to be said for having a few hundred appellate judges bring their collective wisdom to patent cases rather than only twelve.  And this is coming from someone who once enthusiastically supported the Federal Circuit and the idea behind it.  With a quarter-century of experience now behind us, it’s appropriate to ask whether the reality has met the promise.  There’s no question the advent of the Federal Circuit has been great for the patent system and those of us who’ve devoted our professional lives to it.  But has it really lived up to its promise?  I’m not sure.  After a promising start toward building an understandable, predictable and largely just body of law, recent decisions read more like law review articles than accessible expositions of law meant to be understood by ordinary businesspeople and lawyers alike.

In the final analysis, most businesspeople simply want to know what they can and cannot do, and the lawyer’s job is largely to tell them just that.  For a while, we were heading in that direction.  Then along came Markman, Festo, Cybor, Phillips and others.  The mental gymnastics are certainly fun and never boring, and you can make a fine living doing this.  But if the system isn’t of real value to those who ultimately foot the bill, are we in danger of cutting our own throats?  How long will businesses continue to pay for bright young lawyers to research and brief the minutiae of needlessly complex procedure that no one understands and the courts don’t follow anyway? How long will they continue to pay for patents while the ground rules change in fundamental ways every few years?

Not that long ago, the patent system faced possible extinction because no one took it seriously.  The Federal Circuit  fixed that and we should all be grateful.  Today, however, the principal problem is that people take it way too seriously.  Perhaps it is time to take a step back and reflect on whether a single court of appeals for patent cases is the way to go.  Twenty years ago I thought it was.  Today, I’m not so sure. In all seriousness, this is an important question that deserves serious thought.