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Fun Facts about the United States court of Appeals for the Federal Circuit

* The Federal Circuit was created in 1982 by the Federal Courts Improvement Act. At 25, it isthe newest of the federal courts of appeals.

* The Federal Circuit has two characteristics that make it unique among its sister circuits:

- Jurisdiction based on subject matter not geography

- Nationwide, exclusive jurisdiction over most subject matter areas assigned to it

* Areas of Federal Circuit Subject Matter Jurisdiction:

International Trade, Government Contracts, Patents, Trademarks, Certain Money Claims againstthe Federal Government, Federal Personnel, and Veterans Benefits

* Sources of appeals to the Federal Circuit:

All federal district courts Trademark Trial and Appeals Board

United States Court of Federal Claims Boards of Contract AppealsUnited States Court of International Trade U.S. International Trade Commission

U.S. Court of Appeals for Veterans Claims Office of Compliance of the U.S. Congress

United States Merit Systems Protection Board Government Accountability OfficeBoard of Patent Appeals and Interferences Personnel Appeals Board

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Notes

History: Federal Circuit was created after a decade of study and debate over reform of the

federal judiciary to promote greater uniformity in certain areas and relieve pressure on the docket

of the Supreme Court and the Courts of Appeals. A committee appointed by Chief JusticeWarren Burger in 1971 recommended creating a National Court of Appeals that would decide

cases and screen petitions for appeal to the Supreme Court. A 1975 report of the Commission on

Revision of the Federal Court Appellate System proposed a National Court of Appeals thatwould determine national law and resolve inter-circuit conflicts by deciding certain categories of

cases referred to it by the Supreme Court and the courts of appeals. Neither proposal for a

National court of Appeals was adopted. A proposal drafted by the Department of Justice led to

President Carters request in 1979 that Congress establish a court of appeals for a Federal Circuitthat would combine the functions of two existing courts: the U.S. Court of Customs and Patent

Appeals and the appellate jurisdiction of the U.S. Court of Claims. The president urged congress

to consider vesting the proposed court with jurisdiction to promote uniformity and predictability

in federal tax cases and environmental cases. The bill to create the Federal Circuit was notpassed before the end of Carters term, but it was supported by business leaders and renewed in

1981 and passed into law in 1982. The primary purpose of the court was to reinvigorate thenations industrial strength and technologic leadership by reviving the patent system. The early

decisions of the court have been credited with producing a resurgence in commercial activity and

in scientific and technologic creativity. It was one of a number of policy decisions adopted at the

time to promote investment in research and development. Another important tool was thepassage of the Bayh-Dole Act, which permitted universities, small business, and non-profit

institutions to retain title to inventions created in whole or part with federal funding.

Supreme Court Review: As a general matter, many of the cases heard by the Supreme Court

result from the need to settle differences between the several circuit courts of appeals. Because

the Federal Circuit primarily has exclusive jurisdiction, its cases do not typically result in circuitsplits. Consequently, the decisions of the Federal Circuit in its subject matter areas are the

primary method for resolving disputes under applicable law. Of the 3500 cases decided on the

merits in the last five years, the Supreme Court has granted certiorari in 15. In the 25 years ofthe Federal Circuits existence, the Supreme Court has granted certiorari to it 55 times. Of these

55 cases more than 2/3 were in cases other than patent law. In recent years, however, the

Supreme court has shown an increased interest in the Federal Circuits patent law jurisprudence.

The Supreme Courts 1996 decision in Markman v. Westview Instruments, Inc. (affirming theFederal Circuits determination that claim construction is a matter for the court and not the jury)

seems to have been a turning point in the Supreme Courts interest in the essentials of patent law.

From 1989 through 1996, the Supreme Court heard only 4 patent cases on appeal from theFederal Circuit. From 1996 to 2003, the Supreme Court heard twice as many patent cases on

appeal from the Federal Circuit with the pace picking up even more after 2004. The Supreme

Court has heard 7 patent cases in the last three years. One type of patent case that typicallydraws Supreme Court attention is if the Federal Circuit strays from generally applicable rules

governing litigation in favor of special rules for patent cases. Examples: eBay, Inc. v.

MercExchange, L.L.C. (2006), rejecting the Federal Circuits general rule that a permanent

injunction will issue once infringement and validity have been adjudged without application of

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the traditional rules of equity that generally govern issuance of injunctive relief. Supreme Court

has also inserted itself into the operational aspects of patent law, which is most likely a reflection

of the major role that patent law now plays in the U.S. economy. In April of this year, theSupreme Court decided KSR International, Co. v. Teleflex, Inc,, holding that the Federal Circuit

had applied too narrow and rigid a conception of the obviousness inquiry required by Section

103 of the Patent Act. The increased attention by the Supreme Court has lead to increasedattention by academics and policy-makers who have begun suggesting a relaxation of the

exclusivity of the jurisdiction of the Federal Circuit over patent cases. Unlikely that such a

dramatic step would be taken any time soon, particularly since it would undermine the rationalefor creating the court in the first place, but the debate is likely to continue.