Federal Circuit Split

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 Akamaiis 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.

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1 Response

  1. Patent Me says:

    If this is your impression of the state of affairs in patent law, then you are clearly not on top of the philosophical differences. (I’m not trying to be snarky, as I’m ignorant of different legal areas.) The split comes down to whether one believes that patents actually encourage innovation or one believes that free markets and competition are better for innovation. Another split is based technology areas. Few people dispute that strong patent protection is good for pharma/biotech industries, but the views are much more divergent when looking at the software industry. A lot has been written about this.