The Road to Redistribution

A little over two years ago, Chief Judge Diane P. Wood of the Seventh Circuit Court of Appeals made waves with a proposal to abolish the Federal Circuit’s exclusive jurisdiction on patent appeals, and to allow redistribution back to the regional circuits—citing the frequency of Supreme Court review and speculating that redistribution would add intellectual diversity to ward against stagnant group think. We blogged about it at the time, and, like other practitioners, have been thinking of the issue now and again since.

By way of background, by federal statute, the Federal Circuit has jurisdiction over all patent appeals—an effort by Congress several decades ago to harmonize conflicting doctrines emerging from the regional circuits. On the other hand, review of cases involving patents’ intellectual property cousins—copyrights and trademarks—takes place in the regional circuits, making for a difference in appellate forum depending on the nature of intellectual property right asserted.

Others, troubled by that difference in treatment, have gone in the opposite direction from Chief Judge Wood, by asserting that the Federal Circuit should assume exclusive jurisdiction over all intellectual property matters. That outcome, however, would seem to exacerbate the concerns of “group think.”

We would suggest a more moderate proposal or, at least, stepping stone towards a return to redistribution: Concurrent jurisdiction between the regional circuit and the Federal Circuit. Appeals from the district court could be taken either to the Federal Circuit or to the circuit in which the court is located. Appeals from an agency action (e.g. the International Trade Commission or the Patent & Trademark Office) could be taken either to the Federal Circuit or to the circuit in which the non–governmental party is located.