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Rethinking Patent Law’s Uniformity Principle. Craig A. Nard and John F. Duffy Patents and Diversity in Innovation University of Michigan Law School 29-30 September 2006. Issue and Proposal . Issue : What is optimal amount of centralization in patent law’s appellate architecture?

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rethinking patent law s uniformity principle

Rethinking Patent Law’s Uniformity Principle

Craig A. Nard and John F. Duffy

Patents and Diversity in Innovation

University of Michigan Law School

29-30 September 2006

issue and proposal
Issue and Proposal
  • Issue: What is optimal amount of centralization in patent law’s appellate architecture?
    • Choice between centralization and decentralization cannot be answered with polar solution
    • Pre-1982 characterized excessive decentralization
    • Post-1982 characterizes excessive centralization
    • Optimization
  • Proposal: In addition to CAFC, grant appellate jurisdiction to at least one extant circuit court
federal circuit experiment
Federal Circuit Experiment
  • Structural Constraints
    • Power of precedent
    • No benefit of sister-circuit jurisprudence
    • No competition from peers
    • Poor mechanism to gather information and test innovations
  • Self Induced
    • More adroitly deploy common law
    • More receptive to academic literature and district court complaints
centralization v decentralization
Centralization v. Decentralization

Issue has Broad application

    • Design of gov’t institutions
    • Federalism
    • International Law and Antitrust Law
    • Theory of business organizations
    • Theory of R&D
  • Across wide range of institutions, similar arguments in support of centralization and decentralization
  • Both centralization and decentralization have benefits and costs
costs and benefits of centralization and decentralization in patent law
Costs and Benefits of Centralization and Decentralization in Patent Law
  • Competition
    • Judges value reputation and quality of opinions
    • Check on poor decisions and induce more complete and thoughtful rationales
    • Imbue confidence if a shared decision is reached independently
  • Cost: Strategic behavior, namely forum shopping
costs and benefits of centralization and decentralization in patent law cont
Costs and Benefits of Centralization and Decentralization in Patent Law, cont.
  • Information Gathering and Sharing
    • Appellate system relies on lawyer arguments
    • Multiple information gathering points allows for more complete and reliable data
    • Litigants and courts more likely to be creative, cite and rely on historical materials, academic literature, etc.
    • Allow for more appellate arguments, more cases, more factual scenarios, and more complete picture of particular issue
    • Percolation and teeing up for Supreme Court
  • Cost: too much decentralization leads to less expertise – the pre-1982 problem
costs and benefits of centralization and decentralization in patent law cont1
Costs and Benefits of Centralization and Decentralization in Patent Law, cont.
  • Induce Innovations
    • Decentralization fosters innovation, experimentation, trial-and-error, etc.
    • Multi-circuit model allows for innovations to be tested
  • Cost: Need baseline of concentrated knowledge – pre-82 there were too many cooks in the kitchen
challenges and concerns
Challenges and Concerns
  • Forum Shopping
    • Appellate jurisdiction randomly assigned post-district court filing
  • Claim Construction Disuniformity
    • Potential for disuniformity/duopoly
    • Uniformity fostered by issue preclusion and stare decisis
  • Choice of Law