The Changing Face of US Patent Law and its Impact on Business Strategy

The Changing Face of US Patent Law and its Impact on Business Strategy

New Horizons in International Business series

Edited by Daniel R. Cahoy and Lynda J. Oswald

Within the complex global economy, patents function as indispensable tools for fostering and protecting innovation. This fascinating volume offers a comprehensive perspective on the US patent system, detailing its many uses and outlining several critical legislative, administrative and judicial reforms that impact business strategy.

Chapter 6: Unexpected hazards of a specialized patent court: lessons from joint infringement doctrine

Lynda J. Oswald

Subjects: business and management, international business


There are a number of reasons why a legislature might create a specialized court to address the highly technical issues raised by patent law, including fostering uniformity in outcomes, coherent evolution of doctrine and policy, and development of judicial expertise and competency. The US Congress created the US Court of Appeals for the Federal Circuit (Federal Circuit or CAFC) in 1982 with the goal of achieving just these objectives. Unlike the other US federal appellate courts, whose jurisdiction is defined by geography and covers a broad spectrum of federal issues, the Federal Circuit has nationwide jurisdiction over a narrow range of subject matter, including appeals in patent cases. Critics argue that the creation of this specialized court has had its downside as well, including over-activism and potential capture of the court by the patent bar and its constituencies. However, there is an additional, more subtle, but nonetheless important, risk to a specialized court. Because the Federal Circuit has limited jurisdiction and hears a narrow range of cases, it is much less likely to look at traditional common law doctrines, such as tort and agency law, across numerous dimensions, as would the regional federal courts of appeal with broader jurisdiction.

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