Improving Federal Circuit Doctrine Through Increased Cross-Pollination

When the U.S. Court of Appeals for the Federal Circuit was created in 1982, commentators initially were enthusiastic about the court and its unique status as a specialized court. Today, however, scholars are increasingly worried that the creation of this specialized court for patent appeals has resulted in excessive formalism, inaccurate patent law, and doctrinal rigidity. Commentators often base their criticisms on the lack of “percolation” in patent law caused by having a single specialized appellate court hearing all patent appeals. Their proposed solution is to increase the judicial voices heard in patent law, e.g., by splitting patent jurisdiction between the Federal Circuit and one or more regional circuits or by abolishing the Federal Circuit altogether and returning patent appeals to the regional circuits. I argue that a more effective, efficient, and realistic reform proposal would focus on fostering “cross-pollination” in Federal Circuit jurisprudence by increasing the exposure of Federal Circuit judges to broader notions of American legal doctrine such that the Congress's objectives in creating the Federal Circuit (efficient, uniform, and accurate patent law) can be optimized. I put forth a two-pronged proposal that would tweak inter-circuit “sitting by designation” practices so as to simultaneously: (1) increase the exposure of Federal Circuit judges to more generalist legal issues and (2) enable regional circuit judges to infuse their generalist approach into patent appellate decision-making