Judge Diane Wood, who on Tuesday became chief judge of the U.S. Court of Appeals for the Seventh Circuit, proposed in a speech last week that the U.S. abolish the Federal Circuit’s exclusive jurisdiction in patent cases.
The judge, reportedly considered by President Barack Obama as a possible nominee for the U.S. Supreme Court, acknowledged that she has some unconventional thoughts about how the country has handled patent appeals for more than 30 years. But she argued that the rationale for creating the Federal Circuit in 1982—to reduce widespread lack of uniformity in the administration of patent law, to produce better-quality rulings made by specialist judges, and to create a more efficient system for the handling of complex patent cases—is no longer justified.
Wood is not the only Seventh Circuit judge who has challenged the current patent system. Judge Richard Posner, Wood’s colleague and friend, has been vocally critical of the country’s patent regime.
In her speech, a keynote address delivered at the Chicago-Kent College of Law’s annual Supreme Court IP Review conference, Wood—who grew up in Texas, graduated from the University of Texas Law School, and clerked both for the Fifth Circuit and for the U.S. Supreme Court—noted that she does not advocate that the Federal Circuit be abolished outright, but rather that the Federal Circuit and the regional circuits share the patent caseload.
The speech will be reprinted in an upcoming issue of Chicago-Kent’s Journal of Intellectual Property and cannot be reproduced here. But in her talk, which included allusions to songs by the Dixie Chicks, Robin Thicke and Burt Bacharach, the 63-year-old judge made a case that competition and conflict among circuits would be beneficial and would likely give rise to a consensus. She also said an expert court is not particularly advantageous—that law governs society and should not be an arcane preserve for specialists. And finally, she said patent issues are often embedded in other types of suits that are resolved by the regional courts—a fact that has not brought the patent regime to the brink of collapse.
We caught up with Judge Wood this week to ask about her speech. Edited excerpts of the conversation follow:
Lisa Shuchman: How did you arrive at your idea that the Federal Circuit should share the patent caseload with the regional circuit courts?
Judge Diane Wood: It’s an idea that I’ve bounced around for some time. In my conversations with Federal Circuit judges I’ve been struck by how different their process is from the other courts. For example, we don’t have to speak in one voice. In the circuits, we pay attention to opinions of other circuits and if we create conflict, we do it with our eyes open. We get a real exchange of ideas in a way the Federal Circuit doesn’t, and that’s healthy.
LS: Have recent Federal Circuit decisions that have been criticized for causing confusion reinforced your view that the regional circuits should take on patent cases?
DW: I don’t want to get into specific decisions. But it’s worth noting that the Federal Circuit handles about 1,000 appeals a year, while our court hears about 3,000 a year, and nationwide the circuits hear about 58,000 appeals a year. So the Federal Circuit plays a small part. Yet, in the last five years, the Supreme Court has taken 20 cases from the Federal Circuit. That tells you something.
LS: So is the Federal Circuit getting cases wrong?
DW: Not necessarily. They get some right and some wrong. But it tells you the Supreme Court thinks these issues are important—that they are significant issues that shouldn’t be looked at with only one set of eyes.
LS: How would the regional circuits and the Federal Circuit go about sharing the caseload?
DW: There’s already a system for this in place, which is used with administrative appeals in labor law cases. In patent appeals, parties could choose whether they want to go to the Federal Circuit or to the regional circuit where the claim was first filed—they could vote with their feet. If there were a conflict, the Judicial Panel on Multidistrict Litigation would decide where the case would be heard.
LS: Have you received much reaction to your speech?
DW: I’ve heard from all kinds of people, and many of them agree with me. They want more voices weighing in on patents. They say getting more people involved in this extremely important part of the economy is a good idea.
LS: What about the argument that patent law is too complicated?
DW: It’s a myth that it’s so complicated. It’s no more complicated than a complex environmental case, a food and drug case, a RICO battle or some bankruptcy cases. These are all challenging cases we face every day.
LS: You sit on the Seventh Circuit with Judge Richard Posner, who has been quite vocal in his criticism of the patent system. He’s known as a conservative. You’re known as a liberal. Have you discussed your ideas with him? Does he agree with you?
DW: I’ve talked to him about this, and I don’t think ideology plays a role. I think he agrees with some of what I’ve said, although I wouldn’t want to put words in his mouth.
LS: So is there something about the Seventh Circuit that has led both of you to focus on these ideas and openly express your views?
DW: The fact is, our circuit thinks about these issues because we are used to a robust exchange of ideas. It makes us better judges. We have a lot of cases before us and hear more oral arguments than any other circuit. We also publish the second most opinions in the country. We think law should involve rigorous debate.
LS: I have to ask: You’re known as an accomplished oboe player and have been a member of several Chicago amateur orchestras, including the Chicago Bar Association Symphony Orchestra. So why did you choose to make references in your address to contemporary performers like the Dixie Chicks?
DW: I’ve been a Dixie Chicks fan for years. Like me, they’re from Texas.
Note: A version of this post also appeared on CorpCounsel.com, an American Lawyer sibling publication.