Federal Circuit Immigration Appeal: A Modest Proposal

One portion of the immigration legislation being debated would consolidate all immigration appeals to the Court of Appeals for the Federal Circuit (CAFC).

In a recent law.com article, appellate lawyer Howard Bashman provides some background on the issue and wonders why we should stop there:

There assuredly are other categories of appeals that the regional federal appellate courts view as dry, needlessly complex, burdensome or inconsequential.  Perhaps these cases, too, could be sent to the Federal Circuit, so that the regional federal appellate courts would be left to handle only the extraordinarily interesting cases that appellate judges anticipate receiving when they take their oath of office.

Mark Lemley of Stanford agrees that immigration proposal would be bad for the CAFC:

Patent lawyers ought to be concerned about this. Right now, patents are the focus of the court’s jurisdiction, and the White House has increasingly been appointing patent lawyers to the Federal Circuit. If S.2454 passes, the court will become a political battleground, and there will be strong pressure in both parties to appoint ideologues with a particular view of immigration.

The IPO has also weighed-in on this matter, and provided this letter to Senator Bill Frist. 

According to a source, this section of the Bill has now been removed.


5 thoughts on “Federal Circuit Immigration Appeal: A Modest Proposal

  1. 5

    Although the article is giving some information, it is not sufficient for the new reader.

    New York Immigration Lawyer Marina Shepelsky, located in Brooklyn, assists clients from the

    New York metro area and across the United States in all immigration and naturalization

    matters http://www.e-us-visa.com

  2. 4

    Some good points here.

    1) Although less than half of the CAFC cases are patent issues, it is clear that the intellectual focus of the CAFC is on patent law.

    2) I am happy that there are patent attorneys on the bench. However, I strongly disagree with the notion that PTO registration should serve as a litmus test for CAFC nominees.

  3. 3

    Of the background of judges on the Federal Circuit, more than half did not have prior patent attorney experience. The most recent appointee, Judge Prost, was Chief Counsel to the Committee on the Judiciary for eight years prior to her appointment. Judges Linn and Gajarsa, appointed by President Clinton, do have prior patent law experience. Judge Rader, one of the more active judges, has an undergraduate degree in English. [Separately, neither PTO Director Dudas nor Professor Lemley is not a patent attorney, but they both influence patent policy.]

    While patent issues may be a focus, patent cases comprise less than 50% of the CAFC docket.

    Although this does not suggest Sections 501 and 507 should not be opposed, one might be careful of a patent-centric view of a non-patent centric universe.

  4. 1

    S. 2454 is an extensive bill that has many issues we don’t need to address. We need to oppose Sections 501 and 507, which are the only sections that mention the Federal Circuit. See the text at: link to frwebgate.access.gpo.gov
    It is far easier to get legislators to eliminate sections 501 and 507 as a “housekeeping” measure. If we get involved with other sections affecting immigration policy, our efforts will be lost in the noise.

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