Patent Law and Institutional Choice

On his wonderful Fed Circuit Blog, Professor Taylor is hosting an interesting online symposium on the topic of Patent Law and Institutional Choice with the following nine thought provoking essays:


9 thoughts on “Patent Law and Institutional Choice

  1. 3

    The Gugliuzza essay argues that the CAFC is meant to achieve uniformity in patent law across the U.S., it has not created uniformity, and therefore it is a failed experiment that should be scrapped. This is not a convincing argument.

    The measure of the CAFC’s success is not whether it has achieved complete uniformity, but whether it has achieved more uniformity than existed back when patent law was a matter for the regional circuits. Considered in that light, the CAFC is a success. Ending the CAFC will not obviously improve any of the situations that Prof. Gugliuzza cites as evidence of the CAFC’s failures.

    1. 3.1

      I tend to agree with you – and those pushing for the “prior” never seem to justify WHY the prior did not work.

  2. 2

    Yes it’s the most unusual thing: every last regular on this site constantly posts in bad faith and projects their uncomfortable unspoken realizations about themselves onto a single nameless person.

    Wait, what?

  3. 1

    The Reilly piece is interesting in that it grounds the opposition to the concentration of patent cases in WDTX in a respect for Congress’ role in setting patent policy (and in charging the CAFC with maintaining consistency in that policy). I do not believe that I have seen anyone locate the objection to WDTX on that particular terrain.

    I am not sure, however, that I am convinced. WDTX may have the largest patent docket of any single district, but it is far from a majority. As the article acknowledges, Delaware and ND Cal also have large patent dockets. Given that all of these districts take their appellate review from the same CAFC, I am not really convinced that the concentration in WD Tex is actually upsetting any Congressional prerogatives.

    To my mind, the objectionable aspect of the recent trend is not that many plaintiffs are choosing a particular forum, but rather that they are choosing a particular judge. It is not consistent with the appearance of neutrality and fairness that one of the parties to a case can choose the arbiter. The judicial conference needs to step in and adjust arrangements so that a plaintiff filing in WDTX cannot know in advance who will be their judge. Once that adjustment is made, however, the rest of us should be largely indifferent as to where plaintiffs are filing, especially so long as CA5 precedent remains reasonably favorable to §1404(a) transfers.

    1. 1.1

      Your concern for appearance is noted — even as that concern would be dwarfed by real and actual concerns of patentLY unfair treatment of patent holders, and the overall degradation by the continued onslaught of Efficient Infringer propaganda.

      1. 1.1.1

        Always projecting. Always.

        To forum selling’s defenders, Congress and the Supreme Court have presumably made the “wrong” policy choices, and forum selling is desirable because it leads to the “right” policy choices. But, a process-oriented focus is crucial. Forum selling’s defenders are endorsing the replacement of the policy choices of those with the legitimate authority in the patent system to make these choices with the policy choices of those who lack the legitimate authority to make these choices—a couple of federal district judges and/or themselves


          Always projecting. Always.

          Strangely, that is true of a lot of folks lately. The last four years really opened my eyes to the extent to which so much of our public discourse is a bitter mix of bad faith and projection.


            As Greg specializes in that bitter mix of bad faith and projection (as does marty).

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