Donald Dunner


Before the establishment of the Federal Circuit, the system of patent enforcement was deeply flawed, with the circuit courts then responsible for reviewing district court patent decisions harboring widely varying attitudinal views in the interpretation of the patent law. Suggestions for solving the problem through a single specialized appellate patent court were consistently rejected due to general hostility to specialized courts. The formation of the Federal Circuit in 1982 initially appeared to solve the problem in providing uniform and predictable rules governing the enforcement of patents, an essential aspect of the court’s mission. The Supreme Court did not provide any obstacles to this early problem-solving but, in about 2001, the Court’s interest in the Federal Circuit’s holdings increased exponentially. The end result has been significantly detrimental to the implementation of the Federal Circuit’s mission, creating uncertainty and a lack of predictability in the enforcement of patents, undermining the very reason the Federal Circuit was established. Among the main culprits are the Supreme Court’s aversion to bright line rules and its interest in bringing the Federal Circuit into conformity with the general law, an aversion and interest which are misguided and inimical to the public interest in a sound patent system.