The system’s distrusted and toothless.

It’s been another dismal term for the Federal Circuit Court of Appeals. Six of its patent law decisions were reviewed in the US Supreme Court’s 2016-17 term, and the Federal Circuit’s decisions were overturned in all six cases. That, unfortunately, is not surprising. Over the past 15 years, the tribunal once known as the nation’s “patent court” has seen many of its most important patent law decisions reversed by the Supreme Court– sometimes in withering opinions. This has seriously undermined the Federal Circuit’s power, reputation, jurisprudence, and (apparently) self-confidence – causing a major problem for the United States’ patent system.

The Federal Circuit was created in 1982 as a specialized court that would hear all appeals in certain areas of the law, including patent law. And “the court came in like gangbusters,” said Ronald Abramson, a partner in the law firm of Lewis Baach Kaufmann Middlemiss. In its first twenty years, the Federal Circuit issued many landmark rulings that made it easier to obtain and enforce patents.

“The Federal Circuit thought it was the Supreme Court of patent law,” said Prof. Timothy R. Holbrook of Emory University School of Law.

With good reason. In the US, the Federal Circuit judges were unmatched in their technical knowledge and expertise in the intricacies of patent law. And their rulings were rarely questioned by the Supreme Court.

“The Supreme Court reviewed only five cases across the first 15 years of the Federal Circuit’s life,” said Prof. Robin Feldman of University of California, Hastings Law School.

Then, in 2000, the situation changed. The US Supreme Court took a renewed interest in patent law. It began slowly, with the high court hearing one patent case in 2000, then another in 2001. A trend developed, with the Supreme Court gradually reviewing more patent cases per term. During the 2014-15 term, the high court heard an unprecedented six patent cases.

Supremely Critical

In the vast majority of post-1999 patent cases, the Supreme Court has overturned the Federal Circuit’s rulings. This, however, was to be expected. “If a Federal Circuit ruling was fine, the Supreme Court wouldn’t bother granting certiorari,” said Meredith Martin Addy, a partner in the law firm of Tabet DiVito & Rothstein.

But the sheer number of Supreme Court patent cases decided in the past 17 years – that was unusual. So, too, were the Supreme Court’s opinions in these cases, with the high court often unanimously rejecting longstanding Federal Circuit doctrine – and occasionally leveling harsh criticism at the Federal Circuit. For instance, in Limelight Networks, Inc. v. Akamai Technologies, Inc. [pdf], the Supreme Court wrote that the nation’s specialized patent court “fundamentally misunderstands what it means to infringe a patent.” In Bilski v. Kappos [pdf], “the Justices suggested that they disagreed with everything the Federal Circuit had ever said about patentable subject matter in the Circuit’s [almost] 30-year history,” said Feldman.

The Supreme Court has wound up throwing much of the Federal Circuit’s patent jurisprudence out the window. The high court overturned rules on such important topics as patent-eligibility, indirect infringement, willful infringement, patent exhaustion, venue for infringement suits, availability of injunctive relief, and amount of damages for design patent infringement.

“There is precious little from the Federal Circuit’s jurisprudence over the last 30 years that has survived the last 10 years of the Supreme Court,” said Abramson.