By Jason Rantanen
One of the ongoing debates involving the Federal Circuit revolves around its performance as a circuit court. Professors Craig Nard and John Duffy, for example, have critiqued the court's basic jurisdictional structure, arguing that court's exclusive jurisdiction fosters an insularity that produces "an isolated and sterile jurisprudence that is increasingly disconnected from the technological communities affected by patent law," and that the solution is to rewrite the court's jurisdiction. These and other arguments criticizing the Federal Circuit's performance are supported by the epithet that the Federal Circuit cites scholarship in its patent opinions at a far lower rate than other circuits do in their intellectual property opinions.
In The End of an Epithet? An Exploration of the Use of Legal Scholarship in Intellectual Property Decisions, recently published in the Houston Law Review, Professors Lee Petherbridge and David L. Schwartz examine this empirical claim about the Federal Circuit's use of scholarship by exploring the U.S. Supreme Court's use of legal scholarship in its patent, trademark, and copyright jurisprudence. They find a substantial difference in the use of scholarship across these areas, with the Court's use of legal scholarship in copyright and trademark decisions being among the highest observed and its use in patent decisions among the lowest. It thus appears that the Supreme Court behaves similar to the Federal Circuit with respect to the use of legal scholarship in patent cases, undercutting the empirical support for the claim that the Federal Circuit is insular. This finding adds to an earlier study by Schwartz and Petherbridge revealing that the Federal Circuit's overall rate of citation to scholarship is within the range of the regional circuits.
In addition to their empirical findings, Petherbridge and Schwartz address the question of why the use of legal scholarship in trademark and copyright jurisprudence is so high, and its use in patent jurisprudence so low. Their answers range from the doctrinal (patent law is more developed, so less need to reference scholarship) to this historical (until recently, perhaps there has just been a lot less patent law scholarship and beyond).
Read the article here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2214025
This issue of the Houston Law Review is worth checking out generally. It includes terrific articles by R. Anthony Reese, Greg Vetter, Colleen Chien, Kevin Collins, Paul Janicke, Mark Patterson, and Katherine Strandburg.