Title

I Dissent: The Federal Circuit’s “Great Dissenter,” Her Influence on the Patent Dialogue, and Why It Matters, 19 Vand. J. Ent. & Tech. 873 (2017)

Document Type

Article

Publication Date

2017

Abstract

This Article is the first study to comprehensively explore the centrality of the patent dialogue at the Court of Appeals for the Federal Circuit, the nation’s principal patent court from empirical, doctrinal, and policy perspectives. It offers several insights into how the Federal Circuit reaches consensus and when it does not, serving as a window into its inner workings, a reference to academics, judges, and attorneys alike. More broadly, this Article provides a template to study the “legal dialogue” of other judges at the Federal Circuit, those in other Circuits, as well as those in other areas of the law. The Article looks through the lens of one of the Federal Circuit’s founders, Judge Pauline Newman, whose opinions have been instrumental in developing patent law over the last thirty years. These opinions reveal the consistency and coherence of her judicial philosophy and a sincere commitment to the mission of the Federal Circuit, a court she helped to create. Moreover, her dissents, particularly over the last twenty years, serve as an institutional record for course correction even as the court continues to navigate new fault lines brought about by the America Invents Act, the globalization of patent litigation, and disruptive technologies that challenge the compact of patent law today. The study involved a review of 1,789 cases and 4,981 law review articles to give 10,461 datapoints. An in-person interview with Judge Newman, conducted over two sessions, complements the quantitative dimension of this Article. Her frank insights fill the gaps in the facts and quantitative findings. They also provide a fresh and reflective assessment of her dissents. The data confirms that Judge Newman is the Federal Circuit’s most prolific dissenter and that her dissents resonate with the Supreme Court, her colleagues, and academic commentators more than those of any other Federal Circuit judge. The data identifies her ideological supporters and detractors on the court, but her influence with those people and the industry is more nuanced than it might appear at first blush. The Article also will paint the nuanced picture of her influence on critical challenges in patent law that the Federal Circuit continues to contend with today.