Institutional Competence: SCOTUS Dings CAFC

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Others with more of a dog in the fight over Federal Circuit deference to district courts on matters of patent claim construction will have more (and more interesting) things to say about today’s opinion in Teva v. Sandoz. I’ll only note one particular passage in Justice Breyer’s majority opinion that caught my eye, on pages 7-8 of the slip opinion:
Finally, practical considerations favor clear error re­view. We have previously pointed out that clear error review is “particularly” important where patent law is at issue because patent law is “a field where so much de­pends upon familiarity with specific scientific problems and principles not usually contained in the general store­house of knowledge and experience.” Graver Tank & Mfg.Co. v. Linde Air Products Co., 339 U. S. 605, 610 (1950). A district court judge who has presided over, and listened to, the entirety of a proceeding has a comparatively greater opportunity to gain that familiarity than an appeals court judge who must read a written transcript or perhaps just those portions to which the parties have referred. Cf. Lighting Ballast, 744 F. 3d, at 1311 (O’Malley, J., dissent­ing) (Federal Circuit judges “lack the tools that district courts have available to resolve factual disputes fairly and accurately,” such as questioning the experts, examining the invention in operation, or appointing a court-appointed expert); Anderson, 470 U. S., at 574 (“The trial judge’s major role is the determination of fact, and with experi­ence in fulfilling that role comes expertise”).
It seems to me that this reasoning is a fairly direct challenge to the raison d’être of the Federal Circuit.  Learned Hand himself complained that the technical knowledge and expertise necessary to oversee the operation of the patent laws were beyond the grasp of most generalist Article III judges, and this was among the weightier reasons underlying the creation of our only federal appeals court whose jurisdiction is defined by subject matter. But judging by the Supreme Court docket (and the ruminations of some fairly capable generalist federal appellate judges), the argument for a specialist patent court is increasingly under assault.
Of course, it is trendy to take pot-shots at the Federal Circuit, and at the patent system generally. And the Supreme Court has been admonishing the CAFC–in subtle and not-so-subtle ways–for years; the quoted language from the Teva opinion is just the latest in a long line of examples. But the status quo has its defenders, and it does not seem likely that Congress will be loosening the Federal Circuit’s grip on patent law any time soon. So in the meantime, we’re left in the awkward position of continuing to rely on an institution whose comparative competence is increasingly called into question. Which, regardless of your view of the merits of a specialist court, can begin to wear on that court’s perceived legitimacy.

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