We are doing a CLE event this week at my law school on the Supreme Court’s IP docket, and a question that I have after reviewing some of the major upcoming cases (most notably CLS Bank and Akamai) is why is there such a deep divide within the Federal Circuit on so many patent cases? With respect to the Supreme Court or an ordinary circuit court, the answer can be traced back to the polarization of our politics.
I’m not sure, though, that this can explains the fractured state of the Federal Circuit. I don’t think that there is a political valence to patent law (for example, Republicans want to read them broadly and Democrats want to read them narrowly, or vice versa). Nor do I perceive a substantial difference among patents scholars that is comparable to the disagreement between, say. originalists and non-originalists in constitutional law. But something must be behind the sharp exchanges that we see in some of the en banc Federal Circuit opinions. I’d be curious if patent practitioners have any thoughts on this.