Is the Federal Circuit Succeeding? An Empirical Assessment of Judicial Performance

Abstract

As an appellate body jurisdictionally demarcated by subject matter rather than geography, the United States Court of Appeals for the Federal Circuit occupies a unique role in the federal judiciary. This controversial institutional design has profoundly affected the jurisprudential development of legal regimes within its purview-especially in patent law, which the Federal Circuit has come to thoroughly dominate in its two decades of existence. In this Article, we assess the court's performance against its basic premise: that, compared to prior regional circuit involvement, centralization of legal authority in the Federal Circuit will yield a clearer, more coherent, and more predictable legal infrastructure for patent law. Using empirical data obtained from a novel study of the Federal Circuit's jurisprudence of claim construction-the interpretation of language defining a patent's scope-we conclude that, on this indicator at least, the result has been decidedly mixed, although there are some encouraging signs. Specifically, the study indicates that the Federal Circuit is sharply divided between two basic methodological approaches to claim construction, each of which leads to distinct results. The dominant analytic framework gained additional favor during the period of the study, and yet the court became increasingly polarized. We also find that the significantly different approaches to claim construction followed by individual Federal Circuit judges has led to panel dependency; claim construction analysis is clearly affected by the composition of the three-judge panel that hears and decides the case. While little in the results of this study would lead one to conclude that the court has been an unqualified success, we believe that the picture of the Federal Circuit that emerges is of a court in broad transition. Driven in part by new appointments and an effort to respond to its special mandate, a new Federal Circuit

Is Antitrust Too Complicated for Generalist Judges? The Impact of Economic Complexity and Judicial Training on Appeals

“…8 While a high appeal or reversal rate could indicate a failure of generalist judges to appreciate the technical economic complexity underlying antitrust analysis it might also, for example, merely reflect a period of uncertainty in the law that may decrease over time or a disagreement between district court and appellate judges on the substantive merits (Wagner, 2004). 9 For example, it is difficult to conceive of an exclusively "legal" challenge to a district court decision in a merger case where the legal standard is whether the merger is likely to "substantially lessen competition," a test that has taken on almost exclusively economic meaning.…”

“…See, e.g. Moore (2001), Chu (2001), see also Wagner (2004). This literature generally does not control for individual judicial characteristics such as technical scientific background, though Moore (2001) finds no difference in reversal rates between Federal Circuit judges with technical backgrounds and those without.…”

Notice Failure and Notice Externalities

“…Reflecting the relative imprecision of words in comparison to geophysical measures, scholars have found a relatively high reversal rate for claim construction rulings (Anderson & Menell 2012;Moore 2005a) and shown that even experienced patent jurists fare little better than new judges (Schwartz 2008(Schwartz , 2009. The jurisprudence of claim construction has been roundly criticized for lacking coherence (Burk & Lemley 2009a;Mullally 2007;Miller 2005;Wagner & Petherbridge 2004).…”

Notice Failure and Notice Externalities

“…(Polaroid Corp. v Reflecting the relative imprecision of words in comparison to geophysical measures, scholars have found a relatively high reversal rate for claim construction rulings (Anderson & Menell 2012;Moore 2005a) and shown that even experienced patent jurists fare little better than new judges (Schwartz 2008(Schwartz , 2009). The jurisprudence of claim construction has been roundly criticized for lacking coherence (Burk & Lemley 2009a;Mullally 2007;Miller 2005;Wagner & Petherbridge 2004).…”