Circuit Overload: How the Federal Circuit is Changing

This article discusses developments of at the Federal Circuit, including seven new judicial appointments in five years, challenges with the Supreme Court, and increased PTAB requests.

“‘It is a dramatically different court from six or seven years ago,’ says John O'Quinn, partner at Kirkland & Ellis in Washington DC. ‘You have seven new judges on the court since then and that's going to reshape any institution.’

Court practitioners are trying to get to grips with the stance of the newcomers. Many of the judges have very short records on the bench from which to try and predict behaviour.

A generation gap may be opening up on the court. Four members of the Court are in their forties, all of whom are at least 30 years younger than the three most senior active members of the court. ‘You get a fresh perspective being brought," says O'Quinn at Kirkland & Ellis. "While all the judges are unquestionably being faithful to the case law, they are all going to have their own angles on it.’”

The article also discusses developments in the Supreme Court.  In the October 2014 Teva v Sandoz decision, the Supreme Court held that the Federal Circuit must apply a "clear error", not a de novo, standard of review when reviewing a district court's resolution of subsidiary factual matter made in the construction of a patent claim. "One megatrend coming out of the Supreme Court is the message of deference," says O'Quinn at Kirkland & Ellis. "The Federal Circuit, while it has a unique caseload, doesn't have a unique appellate role. The message the Supreme Court has reiterated in a number of contexts, Teva v Sandoz being the most visible one perhaps, is that deference is the norm."

This article appeared in its entirety in the September 24, 2015 edition of Managing Intellectual Property.