By Jason Rantanen
Lee Petherbridge and I recently completed a draft of our empirical study of Federal Circuit doctrinal uniformity, a topic that ties in nicely with the recent debate over the Federal Circuit's exclusive jurisdiction over in patent cases. The piece is called Disuniformity and is available here.
The central finding of our study is a remarkable downward trend in decisional agreement between Federal Circuit judges over the past several years. Figure 1 from the study shows the degree to which all panel members agreed in precedential opinions in appeals arising from the district courts, presented as a 30-unit lagged average.
While it is clearly the case that the rate at which these Federal Circuit opinions are unanimous exhibits some variation, the trend line suggests an over 20% drop in the rate at which panels were unanimous in precedential opinions between the end of 2004 and September 2013.
In the full article, available here, we dig deeper into what we think might be going on and offer some suggestions about what this growing trend of doctrinal disuniformity might mean for the debate over the court's exclusive jurisdiction in patent cases.
The article is still in the drafting stage, so any comments and critiques are welcome!
Here's the full abstract:
The Federal Circuit is a response to a failure in judicial administration that produced a fractured, unworkable patent law; one that Congress concluded ill-served entrepreneurship and innovation. The purpose of the response – vesting exclusive jurisdiction for patent appeals in the Federal Circuit – was to permit that court to develop patent law in the direction of greater clarity and uniformity. Both at the time of the Federal Circuit’s creation and more recently, scholars, judges, and practitioners have waged great debates over whether patent law uniformity furthers the ultimate goals of entrepreneurship and innovation. These debates have rested on a largely untested empirical proposition: that the Federal Circuit’s patent law jurisprudence embodies a move towards doctrinal uniformity. This paper reports an empirical study that examines patent law uniformity through the measure of open decisional disagreement between Federal Circuit judges. Its central empirical observation is a remarkable increase in decisional disagreement – indicative of a decline in doctrinal uniformity – among Federal Circuit judges over the past several years. The paper raises and discusses several possible explanations for its surprising observations, including, inter alia, the Supreme Court and personnel changes at the Federal Circuit. It also considers what the observations and explanations might contribute to a current debate over the merits of Congress’s decision to unify patent jurisdiction in the Federal Circuit.