{"id":8133,"date":"2016-10-03T18:38:05","date_gmt":"2016-10-04T00:38:05","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=8133"},"modified":"2016-10-03T18:38:05","modified_gmt":"2016-10-04T00:38:05","slug":"should-the-federal-circuit-be-reconfigured-to-focus-on-intellectual-property-issues","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=8133","title":{"rendered":"Should the Federal Circuit be Reconfigured to Focus on Intellectual Property Issues?"},"content":{"rendered":"

\"\"<\/a><\/p>\n

With the advent of the America Invents Act there has been a growth in appeals from the PTAB to the Federal Circuit. Appeals from the USPTO constituted 24% of the court’s workload in Fiscal Year 2015 — compared to a mere 9% in Fiscal Year 2013! \u00a0I believe an unintended consequence of the AIA will be not only a growth in workload from the appeals of post-grant proceedings but also a growth in workload from appeals of the PTAB’s ex parte matters. \u00a0As attorneys become more accustomed to appealing PTAB post-grant decisions, it is only natural that those attorneys will be more likely to apply their skills to appeal a much greater number of ex parte matters than the Federal Circuit has been accustomed to. \u00a0The growth in workload is already reflected by the apparent increase in Rule 36 Judgments and the growth in the ranks of the USPTO’s Solicitor’s office.<\/p>\n

I suppose one way to address this growing workload is to expand the CAFC to include more judges. \u00a0But, does it make sense to add more judges to an already large and frequently fractured court? \u00a0Would it make more sense to focus the CAFC on intellectual property matters and split off a section of the court as a new court to focus on the other subject areas of the court’s docket? \u00a0Obviously, it’s debatable.<\/p>\n

If one were to split the court, what would the two divisions look like? \u00a0One starting point is to see how the judges break out by technical\/non-technical background. \u00a0It makes sense to keep the non-senior judges having technical backgrounds or district court judicial experience as the ones adjudicating the IP (primarily patent) appeals. \u00a0Such a group would include judges Newman, Lourie, Moore (Chief Judge), O’Malley, Wallach, Taranto, Chen, and Stoll. \u00a0The other court would consequently be assigned judges Prost (Chief Judge), Dyk, Reyna, and Hughes. \u00a0So far, that ratio (8:4) looks appropriate given that the court’s patent, trademark, and ITC docket in 2015 constituted 63% of the court’s total docket. \u00a0I do think Judge Reyna has brought a fresh perspective to the CAFC’s jurisprudence. \u00a0It might be worthwhile to swap his expertise with that of Judge Lourie, as a new court would benefit from someone like Judge Lourie with such a great sense of humor. \u00a0It would be a tough call, though, because both Judge Reyna and Judge Wallach have immense international trade law experience and would provide considerable value to the new court. \u00a0 That leaves only a few senior judges to assign. \u00a0As a former chief judge, Judge Mayer would provide valuable experience to a new court — plus, he does not seem to be a real fan of oral arguments; so, the new court with its merit cases and limited number of oral arguments would be a good fit for him. \u00a0As a former assistant US Solicitor General, Judge Bryson would also be a good fit for the new court. \u00a0Judges Plager, Clevenger, and Schall have a wealth of patent law experience; so, it would make sense to include them in the IP group. \u00a0Additional positions could be filled on each court by new appointees as workload demands.<\/p>\n

At the end of the day, one embodiment of the court split would be the following:<\/p>\n

Reconfigured Federal Circuit<\/span>……………………………….\u00a0New Court<\/span><\/p>\n

C.J. Moore \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 C.J. Prost<\/p>\n

Newman \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Mayer<\/p>\n

Plager \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Lourie<\/p>\n

Clevenger \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Bryson<\/p>\n

Schall \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Dyk<\/p>\n

Linn \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Hughes<\/p>\n

O’Malley<\/p>\n

Reyna<\/p>\n

Wallach<\/p>\n

Taranto<\/p>\n

Chen<\/p>\n

Stoll<\/p>\n

By pure coincidence, I suspect that this partitioning would have a dramatic effect on reducing the current fractures among the court, e.g., with respect to 35 U.S.C. \u00a7101 issues. \u00a0Pure coincidence.<\/p>\n","protected":false},"excerpt":{"rendered":"

With the advent of the America Invents Act there has been a growth in appeals from the PTAB to the Federal Circuit. Appeals from the USPTO constituted 24% of the court’s workload in Fiscal Year 2015 — compared to a mere 9% in Fiscal Year 2013! \u00a0I believe an unintended consequence of the AIA will […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/8133"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=8133"}],"version-history":[{"count":57,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/8133\/revisions"}],"predecessor-version":[{"id":8192,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/8133\/revisions\/8192"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=8133"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=8133"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=8133"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}